Marijuana Law, Policy & Reform

"An Equity Action Plan for Marijuana: The Biden Administration’s Opportunity to Advance Equity Through Cannabis Reform"

The title of this post is the title of this notable new paper authored by Cat Packer now available via SSRN. (Note: Cat is my former student and also is now serving as a Distinguished Cannabis Policy Practitioner in Residence with the Drug Enforcement and Policy Center at the The Ohio State University Moritz College of Law.) Here is its abstract:

This paper examines the Biden Administration’s executive orders on equity, its position on marijuana reform before and after President Biden’s related October 2022 statement, and it's repeated statements acknowledging both cannabis criminalization’s disproportionate impact on Black and Latino communities and marijuana reform as an opportunity to advance equity.  Moreover, this paper critiques the omission of marijuana reform within the Biden Administration’s Equity Action Plans and highlights the opportunity for the Biden Administration to use its existing executive orders on equity as a framework to understand and address how marijuana laws and policies create barriers for underserved communities through the development of an equity action plan for marijuana reform.

Upcoming DEPC event on "Prosecuting Cannabis: Approaches from States without Legalization"

As a follow-up to new research (to be discussed in a future post) concerning marijuana enforcement by district attorneys in states that still prohibit recreational marijuana use, the Drug Enforcement and Policy Center at The Ohio State University and the Prosecutors and Politics Project at UNC School of Law is hosting on May 17, 2023, a conversation with a panel of legal experts and academics.  You can register for the online event here, and  this event page provides some backgrouns along with the scheduled panelists:

Over the last decade, a large number of states have adopted various forms of marijuana reform. To date, 21 states have legalized marijuana for recreational purposes and 38 have legalized medical marijuana use. While public opinion polls suggest that the vast majority of people support marijuana legalization, less is known about the opinions and policies of prosecuting attorneys in states that have not yet legalized marijuana for any purpose.

Panelists:

Amy Ullrick, Project Manager, Prosecutors and Politics Project, University of North Carolina 
Sam Kamin, Professor, Chauncey G. Wilson Memorial Research Chair, University of Denver Sturm College of Law
Zachary Price, Eucalyptus Foundation Endowed Chair, University of California College of the Law, San Francisco
Lauren Ouizel, Professor of Law, Temple University Beasley School of Law

Moderator:

Carissa Byrne Hessick, Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina

Student presentation exploring how Republicans might tackle marijuana reform from a conservative direction

I always find the poltics of marijuana reform to be interesting and even more dynamic than is often recognized. Consequently, I am excited that the second presentation slated for this week is focused on in this arena. The topic is described by my student this way (along with background readings):

It is no secret that marijuana reform efforts — both medicinally and recreationally — tend to start in blue states with red states lagging behind.  Every blue state and almost every purple state has established some sort of medical marijuana program, while around half of red states still have not addressed medical marijuana . Almost every blue state has legalized recreational marijuana, while most red states have not done so.  And importantly, marijuana remains illegal at the federal level with Republican members of Congress being the most resistant to a change in policy.

So, are Republicans bound to oppose marijuana reform efforts with no argument in favor?  Not necessarily! Several Republican priorities overlap with the priorities of those in the marijuana reform crowd.  For example, Republicans tend to oppose an increase in federal power, while marijuana reform advocates support a reduction in federal power over marijuana.  Similarly, Republicans support gun rights, while marijuana reform advocates support allowing marijuana users to exercise their Second Amendment rights.  Given these overlaps in policy, Republicans have an opportunity to tackle the marijuana issue from a conservative direction — maybe even winning over some support from the marijuana reform crowd.  And in doing so, Republicans can ensure the legislative process tempers the excesses of many marijuana reform proposals.

Background Readings:

Kyle Jaeger, "Majority Of Kentucky Residents Back Legalizing Marijuana For Any Purpose, Poll Finds As Medical Hearing Approaches," Marijuana Moment (Feb. 2020).

Ted Van Green, "Americans overwhelmingly say marijuana should be legal for medical or recreational use," Pew Research Center (Nov. 2022).

Rebecca Rivas, "Marijuana vote divided Missouri social-justice leaders. Can an equity officer be a bridge?," Missouri Independent (Nov. 2022).

Maeve Walsh & Natalie Fahmy, "How marijuana could become legal in Ohio in 2023," NBC4i (Jan. 2023).

United States v Harrison, No. CR-22-00328-PRW (W.D. Okla. Feb. 3, 2023).

Jeffrey Miron, "The Budgetary Effects of Ending Drug Prohibition," CATO Institute (July 2018).

Student presentation examining the history and failures of D.A.R.E.

Students in my Marijuana Law, Policy & Reform seminar are continuing with their amazing efforts "taking over" my class through presentations on the research topics of their choice. The first of our presentations for the coming week will be looking at D.A.R.E. Here is how my student has described her topic along with background readings she has provided for her classmates (and the rest of us):

D.A.R.E. (Drug Abuse Resistance Education) began in the 1980s as a school based program designed to prevent tobacco use, alcohol use, and drug use.  Its beginning is rooted in the War on Drugs and the Nancy Reagan’s “Just Say No” movement.  The program consists of lectures and simulations conducted by uniformed police officers in classrooms.  D.A.R.E. was extremely prevalent at its height.  As of 2016, 75% of U.S. school districts and 52 countries taught the D.A.R.E. program.  Worldwide over 200 million K-12 children have been taught the D.A.R.E. program.  However, despite D.A.R.E.’s popularity, in the 1990s and early 2000s numerous studies found that D.A.R.E. did not reduce students use of tobacco, alcohol, or drugs.  In fact, D.A.R.E. likely had a “boomerang effect”, making students more likely to use tobacco, alcohol, and drugs.  Since 2009 D.A.R.E. has been teaching a revamped program, Keepin’ It Real, but does the Keepin’ It Real program address the issues of the original D.A.R.E. program? Furthermore, in the era of marijuana legalization, how does D.A.R.E. address marijuana? Overall, major changes still need to be made to the D.A.R.E. program for it to remain relevant and useful to K-12 students.

BACKGROUND LINKS

D.A.R.E. website

Press report, "STUDY: D.A.R.E. Teaches Kids About Drugs But Doesn’t Prevent Use" (1994)

Letter from United States General Accounting Office, "Youth Illicit Drug Use Prevention: DARE Long-Term Evaluations and Federal Efforts to Identify Effective Programs" (2003)

Article from Washington Post, "D.A.R.E. Gets Duped by Anti-Pot Satire" (2015)

D.A.R.E., "D.A.R.E.’s Position and Curricula Regarding Marijuana and Legalization" (2018)

Article from Herb, "Has D.A.R.E. Removed Cannabis from 'Gateway' Drugs List?" (2019) 

Commentarty from American Addiction Centers, "Does the New D.A.R.E. Program Work?" (2022)

Marijuana legalization loses resoundingly in Oklahoma special election

Marijuana reform ballot initiatives were on quite the hot streak between 2012 and 2020.  Though a handful of initiatives lost in this period, a far larger number prevailed.  Medical marijuana reforms almost always won in both red and blue states, and full legalization initiatives were also almost always successful (in part because they were mostly brought in blue states).  But, in 2022, as full legalization efforts were brought to red states, the reform initiative winning streak came to an end.  As detailed here, though Maryland and Missouri voters approved legalization measures, ballot initiatives failed in Arkansas and North Dakota and South Dakota.

And, as detailed in these special election results from Oklahoma, the full legalization ballot initiative losing streak continued tonight in the Sooner State.  And, with still a few votes yet to be counted, it appears that the initiative is losing big, by 25% points.  This New York Times article, headlined "With a Marijuana Shop on ‘Every Corner,’ Oklahoma Rejects Full Legalization," provides some context:

In the past few years, Oklahoma, long a solid bastion of conservatism, has quietly undergone a street-level transformation when it comes to marijuana. Dispensaries dot the landscape, with more than 400 in Oklahoma City alone. And that’s just for medical marijuana.

On Tuesday, voters across Oklahoma opted against going further, according to The Associated Press, rejecting a ballot initiative that would have legalized recreational marijuana use by adults 21 and over.

With the vote, Oklahoma joined a number of conservative states whose voters have recently decided against recreational marijuana legalization. Though Missouri approved a state constitutional amendment to allow for recreational marijuana in November, voters in other conservative states, including Arkansas, North Dakota and South Dakota, rejected similar proposals.

The vote on Tuesday was a setback for marijuana legalization proponents in Oklahoma who had anticipated that laissez-faire economic attitudes and growing support among younger Republicans would provide a pathway for the state to join a diverse assortment of 21 states and the District of Columbia in adopting legal recreational marijuana, from Alaska and the Mountain West to the coasts and parts of the Midwest.

But voters in Oklahoma, where nearly 10 percent of the population already has a medical marijuana card, appeared to have decided that the current level of access to the drug was enough. In the end, the measure failed. Sixty-three percent voted no, while 38 percent voted yes, with about 90 percent of ballots counted as of Tuesday night....

The state legislature passed a two-year moratorium on new medical marijuana business licenses last year. The Oklahoma Farm Bureau, which opposes recreational marijuana legalization, has said the existing marijuana industry in the state is already straining rural infrastructure.

Some background on the recent history of marijuana reform efforts in Ohio

Students in my marijuana reform seminar are quite fortunate to have a special guest speaker coming to class next week.  Tom Haren, who has been called "the Face of Marijuana Legalization in Ohio," serves as a leader with the Coalition to Legalize Marijuana Like Alcohol in Ohio.  This group collected over 200,000 signatures in 2021 in order to get this statutory initiative petition seeking to fully legalize marijuana for full use in front of the Ohio General Assembly.  A dispute over filing deadlines resulted in a delay in when the initiative could move forward to a ballot vote, as this local article explains, so Ohio voters will now see this issue on their ballots in 2023 if the General Assembly does not address the measure and the campaign collects a second round of signatures after the legislative period.

Though I expect Tom Haren to speak to my class about his work on this initiative and its prospects, I still recall the last major ballot campaign over full legalization in Ohio back in 2015.  Helpfully, the rich and often ugly stories surrounding Ohio marijuana reform efforts in that off-off-year election are chronicled in a 2018 law review article: "Responsible Ohio: Successes, Failures, and the Future of Adult Marijuana Use in Ohio."  That article, though already quite dated, provides an important reminder that "Had Responsible Ohio not brought legalization to the political fore in 2015, it is unlikely that Ohio would have [had] a viable medical program" enacted the following summer.

Of course, the Drug Enforcement and Policy Center is the place to go for a lot more information about Ohio's existing medical marijuana program and reform proposals (including the timelines for the ballot initiative).

Highlighting the hazy "who" of marijuana reform with state reforms and persistent federal prohibition

In the classroom and also in some of my scholarship, I often lean into the questions relating to "who" takes the lead with various legal doctrines and reforms. In the marijuana space, of course, these "who" questions have the added complications from conflicting federal and state (and sometimes local) laws and regulations.  Usefully, this lengthy new Grid piece provides something of an overview of the messy realities of discordant "whos" in the marijuana policy space.  The full title for the piece highlights its themes: "Marijuana can be legal and illegal at the same time: How the hazy mix of state and federal laws is creating a mess: It’s hard to figure out when and where using or selling marijuana is a crime — and when it’s not."  Here are excerpts:

America is a little dazed and even more confused when it comes to how legal (or not legal) marijuana is. State laws have been changing dramatically over the past decade — but they’re also inconsistent across state borders. Something legal in one state could get you arrested the next state over. It has created a dizzying patchwork of rules, regulations and exceptions made even worse by the federal government’s complete ban of the substance....

[J]ust because federal agents aren’t exactly arresting every single person with a cannabis plant on their windowsill (there aren’t enough agents for that) that doesn’t mean there won’t be consequences. In child custody cases, for instance, one party can cite marijuana use as a violation of federal law when arguing that someone shouldn’t get custody.

There are also no workplace protections at the federal level, even for workers who use cannabis legally or medicinally in a state. That means that workers can be fired if they fail a drug test, even if they’re in a state where it’s legal and they aren’t currently using or high. Some states have passed worker protections for off-duty use of marijuana to address the issue.

And then there is housing: Federally subsidized public housing bans cannabis use. An applicant or tenant who is found to be in violation of this law might be denied housing or evicted — even if it’s legal in the state they are living in....

Besides the matter of taxes and prices, the matrix of federal and state policies has allowed a thriving “gray market” to proliferate.... This market might take the form of storefronts offering marijuana as a “gift” accompanying a purchase in D.C., where buying and selling weed is illegal — but possessing it isn’t — because of congressional members opposed to legalization putting a rider in a budget bill nearly a decade ago....

The removal of a federal prohibition might result in consolidation. Any huge company, which would be able to ship the product across state lines, could buy out any smaller competitors and bring down prices for legal cannabis products. (For reference, Rand previously estimated that all the cannabis used in the U.S. could be grown on a few dozen industrial-size farms.)

Taking a particular look at the middle of US marijuana reform map as the calendar turns to 2023

Stateline has this notable new article, headlined "Motley Marijuana Laws Drive Consumers — and Revenue — Across State Lines," that gives particular (but still incomplete) attention to the fact that marijuana reform storys have become somewhat consistent on the coasts while being quite varied in the middle of the USA.   I recommend the article in full, and here is a flavor of its coverage:

Less than half a mile south of the Wisconsin border in Illinois, the Sunnyside Cannabis Dispensary bustles with activity. Cars with license plates from Wisconsin, Minnesota and other pot-banning states slide in and out of the shop’s expansive parking lot.

The bright and airy retail store is an easy hop off Interstate 90, which spans the nation’s entire northern tier. For many westbound customers, Sunnyside is the last chance to legally buy recreational, or “adult-use,” marijuana products until Montana, more than 900 miles away. And heading south from this truck-stop town to the small Illinois city of Metropolis, dispensaries likewise hug the Prairie State’s boundaries with Indiana, Iowa and Kentucky, where pot sales are outlawed.

State lines delineate the vastly varying marijuana regulations across the Midwest. Illinois, Michigan and, since December, Missouri allow recreational marijuana, while neighboring states have some of the strictest laws in the nation.  The contrasting statutes create some law enforcement concerns in states where marijuana is outlawed — when residents legally use marijuana just across the border or bring it back home. 

But many elected officials in those states say the larger problem is the loss of potential revenue from an industry that could bring visitors, jobs and tax dollars.  Public support for the liberalization of marijuana laws in this region is growing, following national trends.  Much of the debate is economic, as restrictive states see their residents paying marijuana sales and excise taxes to neighboring states.

In Illinois, which legalized adult-use marijuana in 2019, out-of-state residents account for 30% of recreational marijuana sales, according to state filings. Sales in the state have risen from just more than $400 million in fiscal 2020 to more than $1.5 billion in fiscal 2022.  Tax disbursements to local Illinois governments in fiscal 2022 reached $146.2 million, a 77% increase over 2021.

Illinois law mandates that a fourth of marijuana tax revenue be used to support communities that are “economically distressed, experience high rates of violence, and have been disproportionately impacted by drug criminalization.”  The significant revenue is a big pull for states that outlaw marijuana to consider changing their policies. But some opponents to legalized cannabis worry about what other effects marijuana sales could have on their communities....

Indiana, which has some of the nation’s toughest marijuana laws, borders two states (Illinois and Michigan) with recreational sales. “I try to enforce the laws as best I can based on what Indiana wants us to do,” said Ken Cotter, prosecutor for St. Joseph County, Indiana, along the Michigan border. The region is known as Michiana.

“I was worried that if Michigan legalizes marijuana, folks from Indiana might want to go to Michigan, get the marijuana and drive back — that's one thing. But if they then went to Michigan, legally smoked it there and then drove [under the influence], that's a whole different ball game,” Cotter said. Cotter, a Democrat, said there has not been an increase in marijuana possession cases in his jurisdiction since Michigan legalized recreational sales in 2018, but that marijuana-based DUI charges have “increased dramatically.”

But Cotter was cautious not to draw broader conclusions from his jurisdiction of 270,000 residents, stressing that more data and reporting is a pressing public safety need. That’s in line with an expansive 2021 report from the Cato Institute, a libertarian-leaning think tank based in Washington, D.C., suggesting it’s too soon to know all the effects of the changing laws.  The report noted that early studies, including those on public safety, have varied conclusions, and that data comparisons at this point can be problematic.

A recent survey by a national law firm finds some Midwestern states among those least favorable to the cannabis industry. Indiana’s laws rank 49th among states and the District of Columbia in receptiveness to cannabis, according to Thompson Coburn, a national law firm that has a cannabis practice. Wisconsin stands 47th, Kentucky 41st and Iowa 38th. In Wisconsin, for example, the first conviction for a small amount of marijuana possession is a misdemeanor, but any subsequent possession charge is a felony....

In Minnesota, where Democrats now control the governorship and both chambers of the legislature, lawmakers introduced an adult-use bill on Jan. 5. Democratic Gov. Tim Walz quickly tweeted his support: “It's time to legalize adult-use cannabis and expunge cannabis convictions in Minnesota. I’m ready to sign it into law.”

And in Wisconsin, Democratic Gov. Tony Evers told Wisconsin Public Radio in December that recreational marijuana will “be in the budget,” but that a hostile GOP-led legislature stands in the way. "Even though the people of Wisconsin by huge numbers in polling support recreational marijuana in the state of Wisconsin, I just don't know if the Republicans are there yet," Evers told WPR. "All I know is that there is talk on the Republican side, from what I've heard, around medicinal."...

Iowa appears unlikely to move toward liberalization of its marijuana laws, despite a Des Moines Register poll from 2021 showing 54% of Iowans supporting the legalization of adult-use products.

"2022 Was Marijuana Reform’s Best Year And Everyone Is Unhappy About It: How To Move Forward"

As I am gearing up for another exciting new semester of teaching my always exciting Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law, I was especially drawn to this lengthy new op-ed by Justin Strekal at Marijuana Moment which has the same title as this post.  I recommend the full piece, and here are excerpts highlighting some of its main themes:

2022 was the best of times for marijuana policy reform in America—but if you read the headlines or (god forbid) log onto Twitter, you could be forgiven for thinking that it was the worst.

This Orwellian doublethink is understandable if you look at it through the lens of a minute-by-minute analysis, or by only looking at the stock prices of the young, dominant players in the emerging cannabis industry. But we must keep the long game in mind when we think about ending the 85-year policy of marijuana prohibition and criminalization....

I have been a supporter of the SAFE Banking Act since I started at NORML in 2016, and I even took pro-SAFE meetings with groups that have since evolved their positions on the bill and are now demanding reforms to its underlying structure.

Back then, the purpose of the effort was to advance an aspect of legalization and the regulated marketplaces in Congress at a time when neither chamber had a leader who explicitly said they supported reform, be it SAFE or comprehensive. In other words, being for SAFE Banking was a form of harm reduction, not a cure.

Since the 115th Congress, a lot has changed. This includes the funding power of the reform movement, which has shifted dramatically in recent years, with the number of earnest advocates from the Drug Policy Alliance, Marijuana Policy Project and Americans for Safe Access shrinking, for example.  On the flip-side, K Street lobby shops are hiring new suits seemingly every month, many of whom never thought about marijuana prohibition before being paid by a private company or trade association to do so....

As for what the Republican flip in the House means for this reported agreement between Schumer and Daines? What about comprehensive reform?  Well, I’m not going to give you a percentage likelihood because only snake oil salespeople treat Congress like a betting market.

Whatever comes next in the House majority, it’s important to remember that 51 percent of House Republicans already voted for SAFE in the last Congress, including leaders like Reps. Kevin McCarthy (R-CA), Elise Stefanik (R-NY), Dave Joyce (R-OH), Bryon Donalds (R-FL), Kevin Hern (R-OK) and many others....

Because democracy is a verb and, as recent and ongoing events clearly show, things are not working well in America.  But for the first time ever, there is actually a pathway to accomplish something pertaining to marijuana law reform — but only if the monied interests are willing to live up to the rhetoric they espouse.

US House subcommittee hearing scheduled on "Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level"

Interestingly, on the morning of Election Day, the US House Committee on Oversight and Reform released this notice announcing that on "Tuesday, November 15, 2022, at 10:00 a.m. ET, the Subcommittee on Civil Rights and Civil Liberties will host a hybrid hearing titled 'Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level'.” The next evening, this follow-up memo was released providing a lot more notable details about this notable congressional hearing (including a list of scheduled witnesses).  Here are excerpts:

On October 6, 2022, President Biden announced that he granted a pardon to everyone convicted of simple marijuana possession under federal law and called for a review of how marijuana is scheduled under the Controlled Substances Act (CSA). Advocates for cannabis reform welcomed the President’s actions but continue to call for action in the legislative branch to decriminalize cannabis....

This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs; and the ability for the legal cannabis industry to access financial services.

And this official website provides some more interesting background and also the expected witnesses. Here is a snippet:

On Tuesday, November 15, 2022, at 10:00 a.m. ET, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, and Rep. Nancy Mace, Ranking Member of the Subcommittee on Civil Rights and Civil Liberties, will hold a hybrid hearing to examine the many benefits of cannabis decriminalization at the federal level, including addressing racial disparities in the criminal justice system, improving treatment options for veterans, and allowing marijuana companies to access traditional banking services.

Marijuana arrests account for 43% of all drug arrests, and nine in ten of those marijuana arrests are for simple possession. Although Black and white people use cannabis at roughly the same rates, Black people are nearly four times more likely to be arrested for violating marijuana possession laws, which carries life-altering implications for employment, housing, and education. Decriminalizing cannabis at the federal level and expunging criminal convictions for possession would alleviate these burdens and allow for societal advancement.

Marijuana Moment has good coverage of this planned hearing in pieces here and here.

Mixed results for marijuana reform ballot measures on Election Day 2022

The approval of marijuana legalization in the two biggest states considering ballot initiatives this election cycle — Maryland and Missouri — means that a lot more people voted for than against legalization this Fall. But reform opponents are surely pleased that voters in three other states — Arkansas, North Dakota and South Dakota — rejected legalization initiatives. This MJBizDaily piece, headlined "US marijuana industry wins in Maryland and likely Missouri but suffers losses elsewhere," reviews the details and starts this way:

Marijuana legalization’s yearslong winning streak finally stopped at a red wall in conservative states in the South and West on Tuesday, but the 2022 election still brought a solid win in Maryland – and legalization advocates declared victory in Missouri early Wednesday, too. Together, the two states could lead to nearly $2 billion in adult-use sales within a few years of their launch.

Voters in Maryland approved the 20^th adult-use market, one that is projected to generate as much as $600 million in its first year and up to $1 billion by year four.

Recreational marijuana legalization in Missouri was too close to call for most of election night, but with yes votes ahead by about 6 percentage points with more than 90% of the votes counted, both the statewide campaign and national advocacy groups claimed victory. First-year sales of an adult-use marijuana market in Missouri could reach up to $550 million, according to MJBizDaily estimates, with fourth-year sales projected to be $800 million-$900 million.

Elsewhere, recreational legalization measures in Arkansas as well as in North Dakota and South Dakota were defeated.

Rounding up helpful resources on another Election Day full of importance for marijuana reform

I have sensed that marijuana reform ballot meansures and related topics have received more mainstream media attention than usual this election cycle.  Consequently, I will not try to round up here all the mainstream press coverage and instead will just highlight a set of resources I find useful that readers might also find useful.

Of course, I need to start with the "Drugs on the Ballot: 2022" resource put together by the Drug Enforcement and Policy Center (DEPC).  That resource page not only includes a detailed accounting of the measures on the ballot in 2022, but the page also has a set of terrific interactive graphics mapping out both "Marijuana Ballot Measures Over Time" and "Marijuana Legalization Over Time."

Next, I want to flag the great work of the folks at Bolts, a relatively new "digital magazine that covers the nuts and bolts of power and political change, from the local up."  Bolts covers lots and lots of ground extremely well, and it recently has a piece reviewing the ballot measures headlined "Six States Are Voting on Legalizing Weed or Psychedelics."

Moving from an election site to  a marijuiana one, MJBiz Daily already has lots of election coverage and has a lot more promised.  Here are a few of their recent election pieces that caught my eye:

• "New adult-use marijuana markets worth more than $1.5 billion on the ballot"
• "Key congressional races the marijuana industry should watch"
• "Polls suggest mixed results for adult-use marijuana legalization ballot measures"
• "MJBizDaily to provide in-depth Election Day coverage of marijuana measures"

And, staying in the marijuana news space, Marijuana Moment will also be sure to keep delivering great election-related coverage. Here are some of its recent notable postings:

• "Live 2022 Marijuana Election Results"
• Detailed articles assembled here about all the state and many local reform initiatives
• "Congress Will Hold A Marijuana Hearing One Week After Five States Vote On Legalization Ballot Measures"

DEPC event: "Cannabis on the Ballot: Lessons Learned from the Marijuana Reform Movement"

I am pleased to spotlight a great Drug Enforcement and Policy Center (DEPC) event taking place later this month focused on ballot initiatives as marijuana reform.  Here is how this event is described on this event page (where you can find this registration link):

Ever since California voters legalized medical marijuana via ballot initiative in 1996, many advocates in the U.S. have embraced direct democracy as a means to bypass reluctant legislatures to advance marijuana legalization and broader drug policy reforms.  But reforms advanced through ballot initiatives can raise distinct political and policy challenges, and recent initiatives have sometimes produced legal uncertainty about regulatory regimes and even new limits on the availability of direct democracy.

On the eve of another major election, please join the Drug Enforcement and Policy Center and our panel of experts as they discuss the pros and cons of efforts to enact and implement drug policy reforms via the ballot box and these efforts’ impact on direct democracy more generally.

Panelists:

Burrel Vann Jr., Assistant Professor of Criminal Justice, School of Public Affairs, San Diego State University
Daniel Orenstein, Independent Researcher
Tamar Todd, Legal Director at New Approach PAC; Lecturer at Berkeley Law

Moderator:

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center

Interesting accounting of the disinclination of congressional candidates to talk about cannabis

John Hudak has this interesting new piece over at Brookings discussing the continued failure of marijuana reform becoming a significant campaign issues in this year's congressional races.  The piece is titled "Congressional candidates’ silence on cannabis reform," and is worth a full read.  Here is how the piece starts and concludes:

Cannabis reform has grown in popularity with voters, activists, and state legislators; cannabis is now legal for medical use in 38 states and DC and for adult-use in 19 states and DC.  Despite those advances in state level reforms and in the broader conversation nationwide, Congress has failed to pass a major piece of legislation addressing the issue, and many voters and activists wonder why.

One argument is that federal level officials — in the executive branch and in Congress — simply don’t care enough about the issue to address it.  To consider this question, I included a coding about cannabis reform in Brookings Primaries Project in 2022.  The Brookings Primaries Project examines the publicly stated views—via the websites and social media presence — of all candidates running in U.S. congressional primary races.  We coded each candidate on a four-point scale: whether they supported legalization or decriminalization of cannabis, whether they supported medical legalization only, whether their position was complex or indecipherable, and whether they failed to mention the issue at all.

The results provide three general takeaways.  First, primary candidates for Congress do not consider the issue important enough to elevate to be included on their website or on social media.  Second, on average, candidates who do engage on the issue are at least not harmed by staking out a public position.  Third, stark differences exist between Democratic primary candidates for Congress and Republican primary candidates for Congress....

It is clear that among all candidates, all Democrats, and all Republicans, taking no public position on cannabis was the most popular strategy during the 2022 congressional primaries.  However, among candidates who chose to take a clear position on cannabis, Republicans were more likely to oppose legalization than support it, and the reverse is true for Democratic primary candidates who took a position on cannabis.

In sum, cannabis as a political issue has risen in importance over the past 25 years.  As state legislatures and voters via referenda have enacted changes to cannabis laws, the issue has become more popular even in the halls of Congress.  However, cannabis reform advocates’ frequent stupefaction at the lack of progress at the federal level bumps up against a stark reality.  Most candidates for federal office do not see cannabis as an issue prominent enough to discuss, and deep partisan differences still remain among elected officials, even as support for cannabis in the general public has exploded in recent years.  And the true motivator for a member of Congress to take or change a position — whether voters hold their feet to the fire over an issue — has not yet become a reality in the vast majority of Congressional races across the United States.

Legalization ballot initiative sidelined by state Supreme Court in Oklahoma, while initiative cleared to go forward in neighboring Missouri

As students in my marijuana seminar know (too) well, I find the modern history of marijuana reform throughout the United States to be a fascinating legal and political story.  And sometimes I view some of the regional variations in these stories to be especially remarkable, and one such recent example comes from the center of our great nation.  Specifically, I am referencing here the notably different outcomes of legal challenges to state ballot legalization initiatives in neighboring Oklahoma and Missouri.  Though these states share a (small) border, they are not sharing the same outcomes in lawsuits challenging efforts to put marijuana legalization before votes, as reported in this Marijuana Moment articles:

"Missouri Marijuana Legalization Initiative Will Appear On November Ballot After State Supreme Court Rejects Prohibitionists’ Challenge"

An initiative to legalize marijuana in Missouri is officially cleared for ballot placement following a month-long legal back-and-forth between the campaign and prohibitionists.  A lawsuit filed last month sought to keep the Legal Missouri 2022 reform proposal off the ballot after it was certified by the secretary of state.  But after two lower courts dismissed the challenge, the state Supreme Court on Tuesday delivered the final word that the legal battle is over.

"Oklahoma Supreme Court Says Marijuana Legalization Won’t Be On November Ballot, But Will Be Voted On In Future Election"

Oklahoma voters will not get the chance to vote on a marijuana legalization initiative in November, with the state Supreme Court on Wednesday rejecting the campaign’s lawsuit that sought to secure ballot placement this year.  However, justices also dismissed two separate legal challenges to the ballot title, clearing the initiative’s path for a vote during the state’s next general or special election.

Legal battles over initiatives are never unusual, and a range of legal tripwires can often attend efforts to bring ballot measures directly to voters on any topic.  But I surmise that these kinds of challenges to marijuana reform measure have found growing success, perhaps unsurprisingly, as initiative move from bluer to redder states. Judges and other legal actors in bluer states can often seem more welcoming of ballot initiatives in this arena (and we have seen politicians in Maryland and New Jersey place marijuana reform initiatives on the ballot), whereas these actors in redder states sometime seem far more keen to keep voters from having a chance to directly weigh in on these issues.

Notable new report urges notable new messaging about marijuana use and driving

As reported in this press release, "the Governors Highway Safety Association (GHSA), Responsibility.org and the National Alliance to Stop Impaired Driving [last week] released a new report that provides guidance on how State Highway Safety Offices can better communicate with cannabis consumers about safe driving and offers recommendations about the types of messages that do and don’t work."  Here is more from the release about the report:

The report, Cannabis Consumers and Safe Driving: Responsible Use Messaging, comes as SHSOs face a rapidly changing cannabis landscape that includes the legality, prevalence and social norms about its use. In 2011, no state had legalized recreational cannabis. Just 10 years later, 18 states have done so, and more states will have legalization on the ballot this November. Cannabis use has increased alongside the spread of state legalization....

“As legal cannabis use becomes more widespread in the U.S., motorists need to know the dangers of driving under the influence,” said GHSA Executive Director Jonathan Adkins. “But that message won’t be heard if it’s outdated, irrelevant or insulting to cannabis consumers. This new report offers a playbook to help states develop messaging that resonates with cannabis users and prompts them to refrain from driving for their own safety and the safety of everyone else on the road.”

The report highlights lessons learned from outreach efforts in Colorado and Washington, the first states to legalize cannabis, as well as more recent efforts in Connecticut and Wyoming. It also discusses promising practices that all SHSOs should consider utilizing to create the most effective messages and offers the following recommendations:

• Encourage dedicated funding for traffic safety programs derived from a portion of cannabis sales tax revenue so that states and their partners can deliver timely and relevant information to the public.

• Form partnerships with the cannabis industry, which can help states gain insights on consumer motivations and behaviors, develop and deliver impactful messaging, and legitimize safety efforts.

• Enlist trusted advisors to serve as messengers. Have people and institutions that cannabis users trust – rather than government representatives – convey factual safe driving messages. Diverse and non-traditional messengers can improve message reception with cannabis consumers.

• Use language that resonates with cannabis consumers, so they hear the safe driving message instead of tuning it out because it has outdated terminology. Avoid using unflattering or alienating stereotypes of cannabis consumers.

Weldon Angelos previews his testimony to US Senate on marijuana prohibition's harms

Over at my sentencing blog, I have spotlighted here what seems to be a truly historic congressional hearing taking place this afternoon, July 26, 2022, before the Subcommittee on Criminal Justice and Counterterrorism of the US Senate Judiciary Committee.   The hearing is titled "Decriminalizing Cannabis at the Federal Level: Necessary Steps to Address Past Harms," and the scheduled witnesses all seem likely to have something notable to say.  One of the scheduled witnesses is Weldon Angelos, and he previewed his testimony via this new Marijuana Moment commentary that is worth reading in full.  Here are excerpts:

Tuesday will be a historic day in the U.S. Senate. Members of a key subcommittee have invited me to testify at a hearing on cannabis reform and the harms of criminalization — a first-of-its-kind meeting in a chamber where marijuana policy and the lifelong consequences of prohibition have been swept under the rug for far too long.

My message to the panel will be simple: My name is Weldon Angelos, and I am living proof of the benefits of second chances.  But I’m far from the only person deserving of relief.  I plan to remind members that inaction will only continue to breed injustice, and there’s no more time to waste.

The topic of the hearing — the critically important issue of federal cannabis decriminalization — affects the lives of millions of Americans, from those who have interacted with the criminal justice system, to patients and veterans who get relief from cannabis....

National cannabis reform must include: (1) the release of federal cannabis offenders; (2) a true expungement and sealing of records; and (3) the creation of meaningful opportunities for the formerly incarcerated upon release.

With a comprehensive approach to cannabis reform, we could immediately assist many of the nearly 3,000 people serving federal prison time for cannabis offenses, as well as the tens of thousands of individuals whose lives and futures are haunted by records of cannabis arrests, convictions, and sentences.  Further still, Congress must provide the resources to address state-level cannabis arrests, convictions, and sentences, since each year hundreds of thousands of individuals become entangled in state criminal justice systems despite cannabis being legal in some form in 37 states, three U.S. territories, and the District of Columbia.

This is why I was excited and grateful to see the Cannabis Administration and Opportunity Act introduced last week.  This bill would deschedule cannabis, helping to end the harmful criminal justice impacts of prohibition and supporting the expungement and resentencing of cannabis convictions, all while allowing states the right to decide the direction their jurisdiction will take.

Congress must also address the residual effects of cannabis convictions.  Those with felony convictions can be politically disenfranchised, losing the right to vote or to serve on juries, for instance.  They lose other civil liberties like the right to possess a firearm legally, as well as lawful opportunities afforded to others in education and in public housing, among other things.  Cannabis convictions adversely impact credit scores too, and they can impede or entirely prevent employment, creating permanent barriers to true participation in society.

Even with a full presidential pardon, I still feel the stranglehold of my cannabis conviction.  In my home state of Utah, my prior conviction bars me from participating in the state’s legal medical cannabis industry.  The state refuses to issue licenses to individuals with felony cannabis convictions, even with a full presidential pardon.  In California — the other state I call home — my criminal history prevents me from accessing credit, capital, and financing despite having engaged in conduct that is now legal throughout the jurisdiction....

I realize that I am one of the lucky ones.  I am no longer inmate 10053-081.  I am Weldon Angelos, a reform advocate with the immense privilege of being invited to testify before a Senate panel. But my fortune is not universal.  I am reminded of all those left behind in prison — those who are still serving unjust sentences — many of whom are Black and Hispanic men and women who continue to serve time while predominantly white CEOs and entrepreneurs make millions from the recreational and medical cannabis industries around the country.  The cannabis industry should be able to grow and thrive, but not at the expense of those who are still incarcerated.

And as we think about federal cannabis reform and ensure the release of those who are still serving, we must also provide opportunities and resources to support reentry and create a pathway to expungement to stop the collateral consequences.

Senator Schumer finally to introduce his Cannabis Administration and Opportunity Act

As reported in this new Politico article, "Senate leaders are introducing sweeping legislation Thursday meant to lift federal prohibitions on marijuana more than 50 years after Congress made the drug illegal."  Here is more about a long-in-development, unlikely-to-become-law marijuana reform bill:  

Senate Majority Leader Chuck Schumer’s Cannabis Administration and Opportunity Act would decriminalize weed on the federal level and allow states to set their own marijuana laws without fear of punishment from Washington.

The bill has been a long time coming — Schumer, along with Sens. Ron Wyden (D-Ore.) and Cory Booker (D-N.J.) proposed a discussion draft more than a year ago — and its odds of passing in this Senate are slim. But the legislation will shape the conversation around cannabis legalization going forward and portions of it are likely to find their way into other bills that could pass before the end of the year.

The legislation includes both Democratic and Republican priorities: It expunges federal cannabis-related records and creates funding for law enforcement departments to fight illegal cannabis cultivation. It also establishes grant programs for small business owners entering the industry who are from communities disproportionately hurt by past drug laws, requires the Department of Transportation to research and develop a nationwide standard for marijuana-impaired driving, and restricts the marketing of cannabis to minors....

While marijuana legalization has spread rapidly across the U.S. over the past decade, Capitol Hill has not transitioned as quickly. Nineteen states now allow anyone at least 21 years old to possess and use the drug, and 37 states have established medical marijuana programs. National polls have consistently shown that roughly two-thirds of Americans back marijuana legalization, and support is even higher among younger voters.

But the votes aren’t yet there to pass Schumer’s bill on Capitol Hill. That’s in part because many lawmakers from states with legal markets don’t yet support substantial changes to federal law. Democratic Sen. Jon Tester, for example, represents a state where weed is legal — Montana — and says he does not support federal decriminalization. A handful of other Democrats told POLITICO that they are against legalization or are undecided, including Sens. Jeanne Shaheen (D-N.H.), Joe Manchin (D-W.Va.) and Bob Casey (D-Pa.). Schumer would need all Democrats, plus ten Republicans, to get the bill over the finish line.

Cannabis legalization advocates have had success in the past framing it with Republicans as a states’ rights issue, but some pro-decriminalization Republicans will likely be unhappy with the bill’s expungement of cannabis-related criminal convictions and its equity grant provisions.

Further complicating matters is that the House has twice passed its own sweeping marijuana legalization package, known as the Mariuana Opportunity, Reinvestment and Expungement Act. That legislation does not include much of the regulatory structure that’s part of the Senate bill, and also has a different tax rate....

Instead, some Democrats and Republicans are considering a smaller cannabis bill later this year that could see one or more provisions from the CAOA added to the SAFE Banking Act, a more widely-supported bill that would make it easier for banks to offer financial services to cannabis companies. That plan is still in the discussion stage and nothing formal has been decided.

Many of the changes added to the final Senate bill echo requests regularly made by Republicans. Law enforcement grants, a nationwide youth prevention campaign and traffic safety research all correspond to concerns that legalization skeptics have frequently raised. Schumer has met with Republicans — including Rep. Dave Joyce (R-Ohio), a co-chair of the Congressional Cannabis Caucus — in recent months to discuss where the two parties could potentially come together on weed legislation. Whether the changes will be enough to get enough Republicans on board, however, seems doubtful at this point.

Marijauna Moment's extensive coverage of this long-awaited news can be found here, and includes these additional details (and much more):

[T]he main thrust of the now-filed 296-page legalization bill closely resembles that of the earlier version, which weighed in at a mere 163 pages—though the senators highlighted a number of changes, which generally expand on the draft.

For example, there are revisions concerning cannabis industry workers’ rights, a federal responsibility to set an impaired driving standard, banking access, expungements and penalties for possessing or distributing large quantities of marijuana without a federal permit.

The bill would also create a new federal definition for hemp that would increase the permissible THC by dry weight to 0.7 percent from the current 0.3 percent, but also make it so all THC isomers would be included in that total, not just delta-9 THC.

Two notable new missives to the Biden Administration about marijuana policy and practice

Marijuana Moment has effective coverage to two notable new letters sent recently to the Biden Administration.  Here are headlines, links and the ledes:

"Marijuana Regulators Coalition Pushes Biden Administration For Updated Federal Enforcement Guidance"

A coalition of current and former marijuana regulators is urging the Justice Department to instate updated guidance to federal prosecutors on cannabis enforcement priorities as an interim step while Congress considers broader legislation to end prohibition.

Ten members of the Cannabis Regulators of Color Coalition (CRCC) sent a letter to top DOJ officials, as well as the president and vice president, on Tuesday that addresses the urgent need to reinstate something like Obama-era guidance that generally recommended that prosecutors use discretion in marijuana-related enforcement for state-legal activities.

As the the coalition points out in the the letter, which was shared exclusively with Marijuana Moment, the 2013 guidance that was later rescinded by then-Attorney General Jeff Sessions during the Trump administration came before any states had launched retail cannabis sales. Now, with 19 states that have legalized for adult-use and the vast majority permitting some level of medical marijuana access for qualified patients, there’s a need to bring back something akin to the so-called Cole memo, CRCC said.

The updated memo should advise federal prosecutors against going after people for “crimes related to cannabis when those activities accord with relevant state law and a reasonable set of regulatory principles intended to promote safety and fairness,” the letter says.

"Senators Blast Biden Administration’s ‘Extraordinarily Disappointing’ Marijuana Stance"

A coalition of six U.S. senators are renewing their call for the Biden administration to deschedule marijuana and grant mass pardons for people with federal cannabis convictions, calling the Justice Department’s response to an earlier request for action “extraordinarily disappointing.”

In a letter that was sent to President Joe Biden, Attorney General Merrick Garland and Health and Human Services (HHS) Secretary Xavier Becerra on Wednesday, the senators made a dual request: first, that the attorney general work independently to remove cannabis from the Controlled Substances Act (CSA) and second, that the president issue mass clemency for people with non-violent federal marijuana convictions.

Sens. Elizabeth Warren (D-MA), Bernie Sanders (I-VT), Cory Booker (D-NJ), Ron Wyden (D-OR), Ed Markey (D-MA) and Kirsten Gillibrand (D-NY) signed the new letter. The senators said that DOJ took six months to respond to a previous October 2021 letter urging the attorney general to use his authority to unilaterally start the process of federally descheduling marijuana. The “half-page response” was “extraordinarily disappointing,” they wrote.

Lots and lots and lots of interesting federal marijuana reform news

As it became more and more clear in recent months that there weren't the votes in the Senate needed to pass any of the major federal marijuana legalization bills, federal reform discussions started to grow a bit boring.  Whether and how the SAFE Banking bill might get enacted seemed to be the only story afoot, though that still remains a lively and important matter.  But just in the last few days, a lot of notable news from both inside and outside the Beltway has started to make the federal reform landscape a lot more interesting for a lot of different reasons.  As always, Marijuana Moment has these stories well covered, and here are links to its coverage:

Developments Inside the Beltway

"Attorney General Says Justice Department Will Address Marijuana Issues ‘In The Days Ahead’"

"Bipartisan Congressmen Urge Support For Medical Marijuana Bill For Military Veterans They’ll Be Introducing Soon"

"Congress Pushes Marijuana Protections For Immigrants, Advertisers And Banks In Spending Bills"

"Congressional Lawmakers Seek Broad Marijuana Protections For Legal States In Key Spending Bill Coming Next Week"

"Top Federal Drug Agency Wants To Create A National Medical Marijuana Registry To Track How Patients Use Cannabis"

"White House Drug Czar Says Biden Admin Is Reviewing Marijuana Policies And Safe Consumption Sites"

 

Developments Outside the Beltway

"Pro-Legalization GOP Congresswoman Prevails In Primary Victory After Being Attacked Over Marijuana Reform Stance"

"GOP Senate Candidate Pushes ‘Pot For Potholes’ Marijuana-Funded Infrastructure Plan In Hilarious Campaign Ad"