Marijuana Law, Policy & Reform

Rounding up interesting marijuana/drug policy "year in review" postings

I saw this afternoon two notable "year in review posts," and there are links:

From Marijuana Moment, "Here Are The Biggest Marijuana, Psychedelics And Drug Policy News Stories Of 2021"

From NORML, "2021 Year in Review: NORML’s Top Ten Events in Marijuana Policy"

I recommend both of these pieces in full, but I will here highlight a few of the top-10 from the NORML review that gives particular attention to my concerns about the intersection of marijuana reform and criminal justice.

#1: Five More States Enact Adult-Use Legalization Laws

Legislatures in five states — Connecticut, New Jersey, New Mexico, New York, and Virginia — enacted laws in 2021 legalizing adult-use marijuana possession and regulating retail cannabis markets. These legislative victories marked a significant change from past years, when similar laws were enacted almost exclusively via citizens’ initiatives, not by legislative action. In total, 18 states — comprising nearly one-half of the US population — have now adopted laws regulating adult use marijuana production and retail sales.

“State lawmakers have learned that advocating for adult-use legalization laws is a winning political issue that is popular with their constituents, regardless of their age, race, or political affiliation,” NORML’s Deputy Director Paul Armentano said.

#2: State Officials Vacate Over Two Million Cannabis Convictions

Officials in multiple states have moved to either expunge or seal the records of over two million people with cannabis convictions. Specifically, officials in New York announced vacating an estimated 400,000 convictions. In Virginia, officials have similarly taken steps to seal some 400,000 convictions. In New Jersey, officials have expunged over 360,000 marijuana-related convictions. Officials in Illinois have vacated an estimated 500,000 cannabis convictions, while California officials have expunged over 200,000 convictions. In all, more than a dozen states have enacted legislation in recent years facilitating the process of having past marijuana convictions either expunged or sealed from public view.

In December, US Representatives Dave Joyce (R-OH) and Alexandria Ocasio-Cortez (D-NY) introduced federal legislation to provide funding to state and local governments for the purposes of expunging the records of those with marijuana-related convictions. Following the bill’s introduction, NORML’s Political Director Justin Strekal said, “This bipartisan effort represents the growing consensus to reform marijuana policies in a manner that addresses the harms inflicted by prohibition. There is no justification for continuing to prevent tens of millions of Americans from fully participating in their community and workforce simply because they bear the burden of a past marijuana conviction.”....

#4: Marijuana Arrests Decline Precipitously

The number of persons arrested in the United States for violating marijuana laws declined 36 percent between 2019 and 2020, according to data released in September by the US Federal Bureau of Investigation. According to the agency, police made an estimated 350,150 arrests for marijuana-related violations in 2020. That total is down more than 50 percent from peak levels in 2008, when police made over 800,000 marijuana-related arrests. Marijuana-related arrests were least likely to occur in 2020 in western states — most of which have legalized the possession of the substance.

“As more states move toward the sensible policy of legalizing and regulating cannabis, we are seeing a decline in the arrest of non-violent marijuana consumers nationwide,” NORML’s Executive Director Erik Altieri said. He added, however, “While these numbers represent a historic decline in arrests, even one person being put into handcuffs for the simple possession of marijuana is too many.”

"Growing Up: Vertical Integration in the Cannabis Industry"

The title of this post is the title of this paper recently posted to SSRN and authored by Philip Ewing, 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 marijuana is quickly gaining legal status in an increasing number of states throughout the United States, states are faced with choices to make about how they will regulate the industry.  One aspect of the regulatory scheme that states must implement is how they will allow businesses to be structured, specifically with regards to vertical integration.  Vertical integration is a business structure where a company controls more than one aspect of a business, such as maintaining control over their suppliers, distributors, and retail locations.  This allows companies to reduce overhead and reduce costs.  Some states mandate that marijuana businesses must be completely integrated, controlling the business from “seed to sale,” others allow vertical integration but do not require it, and some states prohibit vertical integration.  This paper will explore vertical integration and how it currently exists in the cannabis industry, detail current trends in state regulations regarding vertical integration, and evaluate policy considerations for the various regulatory approaches.

Looking back and forward suggests pessimism (with a hint of hope?) for federal marijuana reform in 2022

A couple of notable new commentaries on federal marijuana reform caught my eye recently.   This first one is by Alex Shephard at The New Republic under this full headline: "Legalize It, Already!: Biden needs to ditch his old-fashioned ideas about marijuana and realize that legalization is a winning bipartisan issue — something he desperately needs in 2022."  This piece is more about marijuana politics than policy, and here are a few passages with an emphasis on the White House:

“You would think that President Biden would embrace legalization, considering where his constituents are on this issue,” Chris Lindsey, legislative analyst at the Marijauna Policy Project, told me. Per a recent Pew survey, 60 percent of Americans favor full legalization, while 31 percent favor legalizing marijuana for medical use only, meaning that a whopping 91 percent of Americans are in favor. And while several states have relaxed laws or fully legalized weed, the federal government is trailing....

Given the general sense of inertia in Congress, there are other less far-reaching but still important things the Biden administration could do.  The Cole memo, issued by Eric Holder in 2013 and revoked by Jeff Sessions five years later, instructed U.S. attorneys not to enforce federal marijuana laws.  That memo could be reinstated and even expanded to other departments.  Biden could offer clemency to people currently imprisoned for nonviolent cannabis-related offenses and pardons for them and those who have been released.

All of this would be better politically and morally, and in policy terms, than what Democrats are doing now. “You would think that President Biden would embrace legalization, considering where his constituents are on this issue,” Lindsey told me.  “There’s really no question [about] the level of support that they have, and yet the president seems to be AWOL.” After a year ending with political and legislative inertia — and with Biden’s tanking poll numbers, particularly among young people — marijuana policy would be the perfect place to start.

This second one is by John Hudak at Brookings under the headline: "The numbers for drug reform in Congress don’t add up." This piece effectively details some political cross-currents thwarting reform progress in Congress. It should be read in full, and here are some highlights:

Often, in a legislative body, the issue is not whether a law should be reformed, but how that law should be reformed. And there’s the rub for federal legalization legislation. Liberals and progressives in the Democratic Party cannot agree with moderate and libertarian Republicans on what cannabis reform should look like, even if majorities agree that the law should be changed. And as pro-cannabis reform members from both sides dig their heels in on the importance of provisions that are close to their heart (and the heart of their base), it makes assembling that coalition impossible....

It is clear that as a legalization bill shifts away from a pro-business direction, the number of Republican supporters plummets.  And while in a Democratic-controlled House, leadership can muster the votes to pass something like the MORE Act, the requirement to beat a filibuster in the Senate makes passage of more social equity and racial justice-oriented comprehensive legislation an impossibility.  It is not clear if Democrats can even keep all 50 of their Democratic members in line for such a vote, and it is a certainty that they cannot attract the 10 or more Republicans necessary to clear the 60-vote hurdle. And more moderate legislation that could attract more Republicans will likely lose the more progressive members of the Senate Democratic Caucus....

Ultimately, cannabis reform supporters inside and outside of Congress need a reality check about the state of play of current cannabis reform proposals, and what additional complications the future may offer. Regardless of the chosen path forward, there will be naysayers, holdouts, resistance, and anger.  There will be accusations of bloated government or not doing enough to reverse the effects of the drug war.  That is standard for an interest group environment on a passionate issue in a deliberative body.  However, in the end, Congress has a choice between doing nothing and letting prohibition win the day and allowing all of the consequences of that to remain. Or doing something short of perfect, that addresses some of the real harms that drug prohibition has created in this country.

Looking for a hint of hope in these stories, I am drawn to notion that, if the Biden team concludes that Congress is unlikely to get much (if anything) done on this front in 2022, it might look for "safe" executive action that serves as a political winner in this space.  And, as I see it, a clemency initiative focused around certain marijuana offenders — maybe not one as robust as urged by many advocates, but still impactful — could be a huge political winner. 

Frustratingly, I know I am projecting a vision of what I hope will happen soon, not an account of what seems likely in the short term (or even long term).   But I really want to believe there are "safe" and  smart and impactful ways for Prez Biden to start leaning in to this issue at least a bit more.  And at some point he has to at least try in some way to deliver on his 2020 campaign promise to "Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions."

UPDATE on 12/28: I see that the Wall Street Journal now has this new article in a similar vein discussing the challenges of federal marijuana reform under this full headline: "Cannabis Overhaul in Washington Is Only Getting Harder: Legalization agenda could be complicated by states that want to defend their nascent marijuana industries and associated tax revenues."

Initiated statute effort to legalize marijuana in Ohio advances with submission of signatures to prompt legislative consideration

As reported in this local article, headlined "The Just Like Alcohol campaign submits signatures to state, one step closer to getting recreational marijuana on Ohio ballot next year," a notable effort to advance marijuana reform in the Buckeye State advanced a bit today.  Here are the basic details:

A group of Ohio medical marijuana businesses with a proposal placing recreational cannabis on the ballot said they submitted 206,943 signatures to Ohio Secretary of State Frank LaRose’s office Monday.  The submission of signatures is just the latest step in the winding process to get the issue on the November 2022 ballot....

The Coalition to Regulate Marijuana Like Alcohol campaign needed 132,887 signatures from at least 44 of Ohio’s 88 counties by Dec. 27.  The campaign’s spokesman, Cleveland attorney Tom Haren, said campaign workers also verified signatures as they came in.  “The success of our petition drive shows just how eager Ohioans are to end prohibition and legalize the adult use of marijuana,” Haren said. “We look forward to receiving the results of the Secretary of State’s review, and are eager to begin working with legislators on this important issue.”

If county election officials verify the signatures, the proposal will go before the Ohio General Assembly, which gets to first stab at creating a law based on it.  If the legislature fails, the proposal will go on the ballot as an initiated statute.  Haren said the campaign would prefer if the legislature passed a law.

Under the proposed law, Ohioans ages 21 and older could buy and use marijuana.  They could grow up to six plants per person and 12 plants per residence.  It would create a Division of Cannabis Control under the Ohio Department of Commerce to license, regulate, investigate and penalize adult-use cannabis operators, testing laboratories and individuals who would be required to be licensed.

Existing Ohio medical marijuana growers could expand their cultivation areas once they receive an adult-use cultivator license, the proposal says.  Nine months after the proposed law goes into effect, the state would have to issue recreational licenses for existing medical marijuana dispensaries, cultivators, processors and testing laboratories if they complied with other provisions of the proposed law....

People who buy recreational marijuana would be taxed 10% at the dispensaries, and have to pay any other state and local sales taxes at the time of the purchase.  Of that, 36% of tax revenues would go to communities with recreational dispensaries; 36% to a social equity and jobs fund that would seek to “redress past and present effects of discrimination and economic disadvantage” for communities that have been disproportionately affected by marijuana prohibition, such as the more severe criminal penalties for Black men in comparison to white men possessing the same levels of marijuana; 25% to substance abuse and addiction efforts; 3% to the Division of Cannabis Control to support the costs of regulation....

To head off the initiated statute, the legislature is considering a few bills to broaden marijuana access.  Last week, the Ohio Senate passed and sent to the House a bill that would expand medical marijuana to anyone with a condition that would “reasonably be expected to be relieved” by the drug. It would increase cultivation areas and changes the medical marijuana regulation scheme, which currently is divided among three state agencies, to one under the Ohio Department of Commerce.

Those of us working at the Drug Enforcement and Policy Center, which is based at The Ohio State University Moritz College of Law, have been closely following this initiative and all the other marijuana reform proposals being actively discussed in the Buckeye State.  DEPC has created a set of materials to aid in understanding the Ohio initiative process as well as the substantive particulars of different legislative reform proposals.  These Ohio materials are collected here under the heading "A Comparison of Marijuana Reform Proposals in Ohio."  That page includes this link to the original graphic appearing above that we have created to follow the Ohio initiative process, and here is just a sampling of some of the original Ohio materials to be found at the page:

• Comparison of Recreational Marijuana Reform Proposals and Existing Ohio Medical Marijuana Control Program as of December 2021
• Comparison of SB 261 Medical Marijuana Reform Proposal to Existing Ohio Medical Marijuana Control Program as of December 2021
• The Ohio Initiated Statute Process for An Act to Control and Regulate Adult Use Cannabis

Is Congress sure to take up marijuana reform in spring 2022?

The question in the title of this post is prompted by this curious new Hill piece boldly headlined "Congress to take up marijuana reform this spring."  The lengthy article discusses all sorts of reasons why it is quite possible Congress could get serious about marijuana reform in 2022, but it really does not present any reason to expect that it actually will take up reform soon.  Here is an excerpt:

Much of the pressure for reform is bipartisan.  On Thursday, Reps. Dave Joyce (R-Ohio) and Don Young (R-Alaska) sent a letter to Biden and Vice President Harris urging them to change the severity with which cannabis is listed, or “scheduled,” under the Federal Controlled Substances Act, distinguishing it from "far more dangerous drugs such as Fentantly, morphine, methadone and cocaine.”

The restrictions forced by marijuana’s place as a Schedule 1 drug, Joyce wrote, “puts the United States far behind many of our international partners and scientific competitors,” from Ireland and the U.K to South Korea and Israel.  “For the sake of researchers, medical professionals and patients across the United States who continue to lose access to life-saving therapies and data every day #cannabis remains over controlled,” Joyce wrote on Twitter, “I will keep asking.”

"The Effects of Marijuana Legalization in Colorado: More Neutral than Expected"

The title of this post is the title of this paper recently posted to SSRN and authored by Jesse Plaksa, 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:  

In 2012, Colorado was among the first states to legalize marijuana for recreational use, coming only second to Washington by four days.  However, Colorado was the first state to begin selling recreationally.  Thus, interested parties immediately began looking to Colorado’s experiment to help determine what exactly happens when a state begins regulating marijuana like alcohol.  Any major policy change will have many wide-ranging effects.

This paper will examine a variety of those effects, including the effects on crime, use of other illicit drugs, policing, health, and economic effects.  The effects on crime are not clear because there are conflicting reports showing crime has gone down, but others show a neutral effect on crime.  Legalization does not seem to affect clearance rates of crimes, as proponents often argue it would.  It is not yet clear whether marijuana legalization lowers opioid overdose deaths, though researchers would expect that some opioid users would use marijuana instead. Additionally, legalization appears to have little to no effect on traffic accidents and fatalities.  Legalization also added a substantial amount of new jobs to Colorado’s economy and brings in substantial revenue with Colorado’s high tax rate on marijuana sales.

Marijuana is still federally illegal, being a schedule I drug along with heroin, but states have pushed forward with little to no interference from the federal government.  Colorado has paved the way by showing that legalization can, at the very least, bring in much-needed revenue via taxes.  By being aware of the possible effects of legalization, state lawmakers and citizens can be better informed to make decisions for their own states.  Additionally, the federal government can look to Colorado as an experiment that it can then learn from to better decide whether to make any changes at the federal level.  Given that Pew polls show around two thirds of Americans favor legalization, a close look at the consequences of such a policy is warranted.

Latest issue of JNCI Monographs with multiple articles on cannabis policy and research

The December 2021 issue of JNCI Monographs has a series of papers stemming from a symposium last year organized by the National Cancer Institute exploring cannabis policy, public health and research. Here are just some of the great-looking articles in the issue:

"The National Cancer Institute and Cannabis and Cannabinoids Research"

"Cannabis Policy in the United States: Implications for Public Health"

"Nonmedical Cannabis Use: Patterns and Correlates of Use, Exposure, and Harm, and Cancer Risk"

"Cannabis and the Cancer Patient"

"Challenges for Clinical Cannabis and Cannabinoid Research in the United States"

Here is a short excerpt from the first of these article:

Recent survey evidence suggests that one-quarter of cancer patients have used cannabis, often to manage common cancer symptoms or treatment side effects, such as anorexia, nausea, and pain, and there is some evidence of ameliorative effects. A majority of US oncologists engage in discussions about cannabis use with patients, and although almost one-half of them recommend it clinically, few oncologists feel sufficiently informed to make recommendations to their patients regarding the use of cannabis. In general, studies that replicate the effects of cannabis and its constituents are needed as are improvements in research quality and surveillance capacity.

Yet another example of mass past marijuana convictions not addressed by petition-based record relief effort

Given my long-standing interest in marijuana record relief efforts – see, e.g., my early article, "Leveraging Marijuana Reform to Enhance Expungement Practices" and a later piece, "Ensuring Marijuana Reform Is Effective Criminal Justice Reform" –  I was intrigued but not really surprised by this recent AP article out of North Dakota.   The full headline of the article highlights its themes: "North Dakotans Seeking Pot Pardons Slow to a 'Dwindle': Only a few of the tens of thousands of people who may be eligible have taken advantage of a policy change that lets those with low-level marijuana convictions in North Dakota petition have their records wiped clean."  Here are more of the details (with a little of my emphasis added):

Records show only 51 of the 70 people who applied have been granted pardons in the two years the policy has been in place.  Another three people, who were recommended for pardons last month by an advisory board, are awaiting approval by the governor.

Republican Gov. Doug Burgum and Attorney General Wayne Stenehjem both support the change, which brings North Dakota in line with some other states and cities that have been trying to fix problems that such past convictions have caused for people trying to find jobs and housing.  Stenehjem estimated as many as 175,000 marijuana convictions over several decades could be eligible for pardons under the policy....

North Dakota already had allowed people to apply for pardons to remove marijuana-related offenses from their records, but the process was burdensome.  While the new policy doesn’t go as far as other states that automatically dismiss or pardon convictions, it does involve an application process.

People applying for pardons must complete a 1½-page form that law enforcement reviews before placing a case on the pardon board’s agenda.  It costs nothing to apply.

Burgum's spokesman said the number of applicants seeking to have their pot convictions erased has “slowed to a dwindle.”  Only eight applications were received last month in the fourth round of the summary pardons.

I find this story especially interesting because North Dakota is one of the our smallest states (by population, only around 600,000 for decades until recently climbing to nearly 800,000) and also one of our whitest states (90-95% white with Native Americans as the largest minority group).  And yet still, the state AG estimates "as many as 175,000 marijuana convictions over several decades," and these are apparently convictions, not just arrests.  These data highlight how marijuana prohibition has contributed to mass criminalization everywhere and for everyone in the US, not just in urban areas and not just for minority populations.

Even more discouraging, of course, is that over a few years only a few dozen of the tens of thousands with these convictions have the knowledge and ability to fill out only a "1½-page form" to potentially secure a pardon.  Concerns about low "uptake" for petition-based expungement systems often rightly stress how complicated and costly it can be for a person to figure out whether certain records are eligible for  relief and/or to complete the application process (which can have a number of formal and informal costs).  But here there seem to be few complications and minimal costs, and yet still apparently less than perhaps .05% of those potentially eligible have sought relief.  Sigh.

"Fair and Square: How to Effectively Incorporate Social Equity Into Cannabis Laws and Regulations"

The title of this post is the title of this notable new paper available via SSRN and authored by Shaleen Title.  (Shaleen Title served as one of five inaugural commissioners of the Massachusetts Cannabis Control Commission from 2017 to 2020, and this year has been serving as the Distinguished Cannabis Policy Practitioner in Residence at the Drug Enforcement and Policy Center.)  Here is the abstract for this paper:

As states and local jurisdictions implement new laws legalizing marijuana, many have charged regulators with the worthy goal of remedying the injustices of the drug war, a concept known as social equity.  Broadly, social equity falls into a few core policy categories: criminal justice reforms, including automatic expungement of past cannabis offenses; reinvesting a percentage of marijuana tax revenue into the most impacted communities; and — the focus of this paper — creating a cohesive cannabis industry licensing framework with special considerations for people affected by the war on drugs.

So far, no program has successfully achieved its social equity goals as originally envisioned.  But as each new state studies and incorporates the experiences of those that previously tried, we are seeing remarkable progress with respect to the involvement, inclusion, and support of people who have experienced disproportionate harm from prohibition.  This paper is designed to equip readers with practical advice about how to implement social equity.  There are three large policy areas regulators have to address as they begin to design a comprehensive social equity policy for their state’s cannabis industry: policies around what makes an individual or an entity a social equity applicant, policies around what benefits a social equity applicant should have access to, and licensing policies that will support your community’s social equity goals.

Ohio GOP and NY Dem representatives introduce federal HOPE Act to support state cannabis expungement efforts and study collateral consequences

I was pleased to see this news via Marijuana Moment about a new federal bill to support state marijuana expungement efforts.  Here are the basics:

As congressional lawmakers work to advance federal marijuana legalization, a bipartisan duo on Thursday filed a bill that would incentivize states and local governments to expunge cannabis records in their jurisdictions.  Reps. Dave Joyce (R-OH) and Alexandria Ocasio-Cortez (D-NY) are sponsoring the legislation, titled the Harnessing Opportunities by Pursuing Expungement (HOPE) Act.

It would encourage states to provide relief to people with non-violent marijuana convictions through federal grants — the State Expungement Opportunity Grant Program, run through the Department of Justice — that would help cover the administrative costs of identifying and clearing eligible cases.  The bill proposes to appropriate $2 million in funding to support the program for each fiscal year starting in 2023 and ending in 2032.

Specifically, the grants could be used by states to purchase technology used to facilitate expungements at scale, automate the relief process, fund legal clinics to help people get their records cleared and support “innovative partnerships” to provide mass relief....

Under the bill, state governors and local governments “shall submit to the attorney general an application at such time, in such manner, and containing such information as the attorney general may reasonably require” to qualify for the grants.  Further, the legislation would require the attorney general to carry out a study on the impacts of cannabis convictions on individuals, as well as the financial costs for states that incarcerate people over non-violent marijuana offenses.

Officials in jurisdictions that receive the grants would be required to “publish on a publicly accessible website information about the availability and process of expunging convictions for cannabis offenses, including information for individuals living in a different jurisdiction who were convicted of a cannabis offense in that jurisdiction.” They would also need to “submit to the attorney general a report describing the uses of such funds, and how many convictions for cannabis offenses have been expunged using such funds.”

Longtime readers know that expungement policies and practices have long been of great interest to me, going back to my work years ago on an big early article, "Leveraging Marijuana Reform to Enhance Expungement Practices." and more recently through work done in part by the Drug Enforcement and Policy Center (see here and here).  So I am very excited to see this issue getting notable attention via this notable bill by two notable members of Congress.

That said, I must comment that the particulars of this short bill are a bit disappointing.  For starters, allocating only $2 million per year to incentivize states to ramp up expungement seems woefully insufficient.  From the state's perspective, a little money is better than nothing, but having a range of mandates tied to a very small revenue stream likely ensures this bill would have at most modest impact.  Second, the issues that the US Attorney General is tasked to study in this bill are only a small portion of the issues raised by marijuana criminalization, and the bill seems only to look at the impact of past marijuana offenses that have been reformed rather than all marijuana prohibitions.

In the end, I presume this bill is highly unlikely to become law anytime soon, so the particulars may matter less than the useful discussion of the broader issues raised.  Still, I hope that any future legislative proposals in this space are even bolder than this first notable effort.

"Forty Greenhouses and a Dispenser’s License: Affirmative Action and Racial Equity in Marijuana Licensing"

The title of this post is the title of this paper recently posted to SSRN and authored by Eleni Christofides, a recent graduate of 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:  

Federal and state attempts at creating racially equitable marijuana industries can go much farther to treat the harms of the War on Drugs.  If legislatures, or creators of ballot initiatives, seek “race-neutral” policies, they should boost the ability of people with criminal system involvement to have a place in the industry, and to make good on the often-unrealized promise of expungement.  However, the most effective strategy is to confront the racist impact of the War on Drugs head-on, and acknowledge the significance of race in creating a legal industry.  If laws fail to do so, then as more states pass medical programs or even medical and recreational-combined programs, their data collection shows and will show a lack of diversity in the industry.  The silver lining is that the trend may allow future affirmative action schemes to have the evidence to defeat a strict scrutiny challenge.  Though frustrating, waiting on legalization that builds more socially and racially equitable systems for the industry is worthwhile. Returning to an industry that has already taken off, primarily with white-owned-and-controlled companies, and trying to infuse racial and social equity, is not a promising strategy to accomplish real and meaningful change.