Friday, August 27, 2021

"Fair Lending for Cannabis Banking Justice"

The title of this post is the title of this new piece authored by Benjamin Seymour now on SSRN. Here is its abstract:

This Comment offers a fair lending solution to promote racial equity in federal cannabis banking reform: amend the Equal Credit Opportunity Act to ensure individuals previously arrested, charged, or convicted for selling, cultivating, or possessing marijuana will not therefore be precluded from loans to start legal cannabis businesses. Given disparities in the criminal enforcement of marijuana laws, this amendment would provide racial justice benefits, while also encouraging entrepreneurship.  As a market-based social justice effort, this amendment offers a bipartisan approach to one of the most vexing and contentious issues in marijuana banking reform.

This Comment briefly surveys the federal statutes that have led to an under-banked cannabis industry and discusses the costs of cash for marijuana businesses.  It then examines prior reforms proposed by academics, executive-branch officials, and legislators.  Finally, this Comment explores the racial equity concerns that these proposals fail to address and develops a fair lending approach for justice in marijuana banking reform.

August 27, 2021 in Business laws and regulatory issues, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, August 23, 2021

"Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana"

The title of this post is the title of this notable new paper now available on SSRN authored by Robert Mikos and Scott Bloomberg.  Here is its abstract:

Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets.  In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana.  However, the states’ reprieve from the doctrine may soon come to an end.  Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate.

This Article serves as a wake-up call.  It provides the most extensive analysis to date of the disruptions the DCC could cause for lawmakers and the marijuana industry. Among other things, the doctrine could spawn a race to the bottom among states as they compete for a newly mobile marijuana industry, undermine state efforts to boost participation by minorities in the legal marijuana industry, and abruptly make obsolete investments firms have made in existing state-based marijuana markets.  But the Article also devises a novel solution to these problems.  Taking a page from federal statutes designed to preserve state control over other markets, it shows how Congress could pursue legalization without disruption.  Namely, Congress could suspend the DCC and thereby give state lawmakers and marijuana businesses time to prepare for the emergence of a national marijuana market.  The Article also shows how Congress could make the suspension temporary to allay any concerns over authorizing state protectionism in the marijuana market.

August 23, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, August 19, 2021

Medical marijuana prisoner cites recent Justice Thomas statement questioning federal prohibition in support of sentence reduction

In this post a couple of months ago, I noted Justice Thomas's five-page statement respecting denial of cert in Standing Akimbo v. US questioning whether the Raich decision upholding federal power to prohibit all marijuana activity is still good law.  As noted in this recent Marijuana Moment article, headlined "SCOTUS Justice’s Marijuana Comments Should Help Federal Prisoner Win Freedom, Attorney Says," a high-profile federal prisoner is now using this statement to support his argument for a sentence reduction.  Here are the details:

Lawyers for a man serving time in federal prison for operating a state-legal medical marijuana dispensary are making the case that a U.S. Supreme Court justice’s recent statement denouncing the inconsistencies of federal cannabis policy underscore the need for the relief to be granted to their client.

Luke Scarmazzo, who was sentenced to 22 years in federal prison while acting in compliance with California’s marijuana laws, filed a motion for compassionate release in June.  And his legal team recently submitted a supplementary brief that cites statements from one of the Supreme Court’s most conservative justices, Clarence Thomas.

While the high court recently declined to take up case related to an Internal Revenue Service investigation into tax deductions claimed by a Colorado marijuana dispensary, Thomas issued a statement that more broadly addressed the federal-state marijuana disconnect.

Now, Scarmazzo’s team is arguing that the U.S. District Court for the Eastern District of California should take the justice’s comments into account when considering his motion for compassionate release....  The crux of the new brief from Scarmazzo’s lawyers concerns Thomas’s statement in the unrelated IRS case.

Attorneys asserted that the justice’s comment “is an acknowledgement by the highest court in the land of the monumental change that has occurred throughout the nation in the attitudes and laws governing marijuana, and therefore provides further, compelling, support to the extraordinary and compelling reason the defendant should be eligible for Compassionate Release based on a change in law.”

“While Justice Thomas’s opinion does not embody the resolution or determination in a specific case, his opinion rests upon a solid foundation and is no less applicable to the Defendant’s case,” it continues.  “Thomas felt compelled under the circumstances to expound upon the history and current state of the federal prohibition on cultivation and use of marijuana, the many changes to the laws at the state level, and the contradictory federal marijuana policy that are virtually unsustainable at this point.”

“This court should join the majority of District Courts who have granted Compassionate Release when the law has changed, and reform has occurred.  Since the long sentence is not consistent with the current state of law, or the sentences imposed upon his co-defendants, and since he may provide life saving support to his father, Mr. Scarmazzo should be granted compassionate release.”

Prior related post:

August 19, 2021 in Court Rulings, Criminal justice developments and reforms | Permalink | Comments (0)

Sunday, August 15, 2021

California Supreme Court rules Prop 64 did not undo criminalization of possession of cannabis in prison

This past week, the California Supreme Court ruled in People v. Raybon, No. S256978 (Cal. Aug. 12, 2021) (available here), that state prisoners cannot legally possess marijuana while in prison.  The start of the court's ruling highlights why this was not quite a no-brainer given the law of Proposition 64:

This case requires us to interpret Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 64 or the Act)).  The question we must answer is whether Proposition 64 invalidates cannabis-related convictions under Penal Code section 4573.6, which makes it a felony to possess a controlled substance in a state correctional facility.  Although Proposition 64 generally legalizes adult possession of cannabis, it contains several exceptions.  One such exception provides that the Act does not amend or affect “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation . . . .” (Health & Saf. Code, § 11362.45, subd. (d).)  The Attorney General contends this exception applies to violations of Penal Code section 4573.6, meaning that possession of cannabis in a correctional facility remains a felony. Defendants disagree, arguing that because the exception only refers to “[l]aws pertaining to smoking or ingesting cannabis,” it does not apply to laws that merely criminalize possession of cannabis.

Ultimately, we find the Attorney General’s proposed reading of Health and Safety Code section 11362.45, subdivision (d) to be more persuasive. As discussed below, the phrase “[l]aws pertaining to smoking or ingesting cannabis” (ibid.) is broad enough to encompass statutes that criminalize possession. Moreover, there is no law that makes it a crime to smoke, ingest or use cannabis (or any other form of drug) in prison. Instead, the Legislature has taken a “ ‘ “prophylactic” ’ ” approach to the problem of drug use in prison by criminalizing only the possession of such drugs. (People v. Low (2010) 49 Cal.4th 372, 388.) Thus, under defendants’ interpretation, section 11362.45, subdivision (d)’s carve-out provision would fail to preserve any preexisting law regulating cannabis in prisons from being “amend[ed], repeal[ed], affect[ed], restrict[ed], or preempt[ed]” (§ 11362.45), and would instead render the possession and use of up to 28.5 grams of cannabis in prison entirely lawful.  It seems unlikely that was the voters’ intent.  Stated differently, it seems implausible that the voters would understand the requirement that Proposition 64 does not “amend, repeal, affect, restrict, or preempt” any “[l]aws pertaining to smoking or ingesting cannabis” (§ 11362.45, subd. (d)) to convey that, as of the date of the initiative’s enactment, possessing and using up to 28.5 grams of cannabis would now essentially be decriminalized in prisons.  In our view, the more reasonable interpretation of section 11362.45, subdivision (d) is that the statute is intended “to maintain the status quo with respect to the legal status of cannabis in prison.” (People v. Perry (2019) 32 Cal.App.5th 885, 893.)  Thus, possession of cannabis in prison remains a violation of Penal Code section 4573.6.

August 15, 2021 in Court Rulings, Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Noting a dozen states that may be voting on marijuana and other drug reforms in 2020

20200803-160721-ballot with pot leafKyle Jaeger at Marijuana Moment has this helpful article about developing drug reform ballot initiatives under the headline "These States Could Have Marijuana And Psychedelics Legalization On The Ballot In 2022."  I recommend the full piece, and here are the highlights (with links from the original):

Marijuana reform has advanced in numerous state legislatures in the first half of 2021, with lawmakers enacting four new legalization laws so far this year. Now, activists in roughly a dozen states are moving to put cannabis legalization proposals directly before voters in 2022.

Across the country, advocates are in the early stages of drafting proposals, collecting signatures and engaging in public outreach to build support for medical and recreational cannabis legalization measures that they hope to see voted on next year. In at least one state, activists are working to qualify a measure to legalize psychedelic mushrooms for next November’s ballot. And in others, lawmakers may take it upon themselves to put cannabis referendums up for the general election without the need for citizen petitions....

Here’s a breakdown of where cannabis legalization and other drug policy reforms could be decided by voters in 2022, as well as a look at a handful of local efforts to enact marijuana policy changes via municipal ballot initiatives this year.

Arkansas

Arkansas activists are collecting signatures to place adult-use marijuana legalization on the state’s 2022 ballot....

California

California psychedelics activists recently filed a petition for the 2022 ballot to make the state the first in the nation to legalize psilocybin mushrooms for any use....

Idaho

Advocates in Idaho are working to advance separate measures to legalize possession of recreational marijuana and to create a system of legal medical cannabis sales....

Maryland

Maryland’s House speaker recently pledged that lawmakers will pass legislation to put the question of marijuana legalization before voters as a referendum on the 2022 ballot....

Mississippi

No initiatives have been filed for the 2022 ballot so far, but advocates say it’s possible a campaign could launch if the legislature fails to enact medical cannabis legalization during a special session this year or ends up passing a bill that has less robust patient protections than they want....

Missouri

A group of Missouri marijuana activists recently a number of separate initiatives to put marijuana reform on the state’s 2022 ballot, a move that comes as other advocacy groups are preparing separate efforts to collect signatures for cannabis ballot petitions of their own....

Nebraska

Nebraska marijuana activists are gearing up for a “mass scale” campaign to put medical cannabis legalization on the state’s 2022 ballot after the legislature failed to pass a bill to enact the reform this session....

North Dakota

After a House-passed bill to legalize marijuana in North Dakota was rejected by the Senate in March, some senators hatched a plan to advance the issue by referring it to voters on the 2022 ballot....

Ohio

Ohio marijuana activists recently unveiled a new plan to legalize cannabis in the state via the ballot as lawmakers pursue separate reform legislation....

Oklahoma

Oklahoma advocates are pushing two separate initiatives to legalize marijuana for adult use and overhaul the state’s existing medical cannabis program....

South Dakota

South Dakota activists recently filed four separate legalization measures with the state Legislative Research Council — the first step toward putting the issue before voters next year if the state Supreme Court upholds a lower court ruling that overturned the legal cannabis measure that voters approved last November....

Wyoming

Activists are seeking to put separate measures to legalize medical cannabis and decriminalize adult-use marijuana before voters next year — and the secretary of state’s office recently approved the latest version of their proposed ballot language, freeing up advocates to gather a requisite 100 signatures per initiative in order to proceed to the next step.

August 15, 2021 in History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (2)

Monday, August 9, 2021

"How Many States Have Legalized Adult Recreational Cannabis?"

Werner-simon-legalization-logo-map-with-newest-adult-rec-conn-july--2021-(1)-(002)The title of this post is the title of this effective new piece by Julie Werner-Simon at Cannabis Business Times.  The subheadline highlights one theme of the piece: "The answer depends on how we define 'legalized'."  Here are excerpts:

There is one cannabis question that is regularly searched across a variety of Internet platforms: How many states have legalized adult recreational use of cannabis as of today?  As a cannabis law professor and a legal analyst for emerging cannabis businesses, I often am asked that very question.  My response is always the same, no matter the date or the year: “It depends on how legalization is defined.”

State-based cannabis legalization can happen in two ways.  One way is evidenced by those states which permit voters to place topics on the ballot for a vote.  The other way is through the legislature, when a state’s assembly writes and passes legalization legislation which is ultimately signed off by that state’s chief executive.

When defined like that, Connecticut became the 19th U.S. state to legalize adult recreational use when, on June 22, 2021, Connecticut governor Ned Lamont signed into law a bill passed by the Connecticut legislature....

But these numbers will fall like dominos and change with those passed this year each reverting back one number depending on what happens in the highest court of South Dakota.  That state was one of five that had cannabis initiatives on the ballot in the November 2020 election (the others were Arizona, Mississippi, Montana, and New Jersey).

Every cannabis ballot measure in those states prevailed with gusto.  Voters overwhelmingly supported legalizing adult recreational usage in Arizona, New Jersey, and Montana; medical cannabis usage in Mississippi; and both medical and adult recreational use in South Dakota.  But, once the voters made their wishes known, in two of the states, South Dakota and Mississippi, there was a backlash by government officials and the courts.

Some of South Dakota’s elected representatives (including that state’s governor) started a campaign to undermine the will of the voters and invalidate both the medical and adult recreational initiatives passed by a significant majority of South Dakota’s voters.  The same thing played out in Mississippi where government officials challenged, in court, the enactment and enforcement of that state’s voters’ legalization plans....

On February 8, 2021, a South Dakota state court judge ruled against the voters and invalidated South Dakota voters’ passage of an adult recreational cannabis ballot initiative.  Recreational legalization proponents appealed the decision to the South Dakota Supreme Court.  The highest state court in South Dakota heard oral arguments (for and against) on April 28, 2021.  The parties’ presentations and the justices’ commentary did not give a clear indication of what the high court decision will be. As of publication time, it is not clear how the South Dakota justices will decide.

So, how many states have legalized adult-use cannabis?...  Under the definition of legalization in this article, since South Dakota’s adult recreational program is on appeal but voters in South Dakota approved the initiative, it is more than appropriate that South Dakota remains (precariously) on our voters-have-legalized-adult-rec list.

The “how many states have legalized adult recreational use” question will be decided by the five justices who comprise the South Dakota Supreme Court.  It is expected to happen soon as their summer break ends with the beginning of the South Dakota Supreme Court’s September term.  If that court tosses the recreational use legalization measure, and South Dakota comes off the adult recreational legalization list, Connecticut will no longer be the 19th adult-use state, it will become the 18th. New Mexico then would follow suit and revert to number 17, Virginia to number 16, and New York to number 15.

August 9, 2021 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)