Marijuana Law, Policy & Reform

Modern day Fiorello La Guardia?: US Senate candidate Gary Chambers smokes marijuana in new campaign ad protesting criminalization

As detailed in this piece, headlined "Fiorello La Guardia Protested Prohibition By Drinking a Beer…In Congress," some notable politicians have taken notable steps to protest foolhardy prohibitions.  Here are the details from a century ago:

Fiorello La Guardia, best known as the mayor of New York City in the 1930s and ’40s, flaunted his illegal drinking by sipping homemade beer in his congressional office in Washington, D.C.

In 1926, La Guardia summoned 20 newspaper reporters and photographers into Room 150 of the House Office Building. With a straight face, he took “near beer” (the low-alcohol beer allowed under the Volstead Act) and mixed it with two-thirds of a bottle of malt tonic. Then he took a sip. He declared the alcoholic beverage legal, according to La Guardia’s New York Times obituary in 1947, and headlines the next day heralded his publicity stunt.

Notably, La Guardia was also not a fan of marijuana prohibition either:

He went on to become one of the most popular mayors in New York City history. As mayor, his activism against congressional policing of substances continued. La Guardia commissioned the La Guardia Committee Report on Marihuana in response to the start of the war on drugs in the late 1930s. In 1944, after five years of study, his report declared several groundbreaking statements:

“The use of marihuana does not lead to morphine or heroin or cocaine addiction and no effort is made to create a market for these narcotics by stimulating the practice of marihuana (sic) smoking. The publicity concerning the catastrophic effects of marihuana smoking in New York City is unfounded. Marihuana is not the determining factor in the commission of major crimes.”

The study was enough to make Harry Anslinger, the first commissioner of the federal Bureau of Narcotics, denounce La Guardia, his study, and his stance on drugs.

La Guardia’s anti-regulatory stance on cannabis wasn’t embraced by the public as much as his stance against Prohibition was. But one day, perhaps the U.S. will look back fondly on La Guardia’s prescience, just like people today look back on his homemade “beer” he drank while in the House of Representatives.

This notable bit of history came to mind when I saw this new ABC News story headlined "Democratic Senate candidate smokes marijuana in new ad highlighting disparity and reform." The ad is very much worth watching in full (so I have it embedded below), and here are the basics from the press piece:

Progressive activist and Democratic U.S. Senate candidate Gary Chambers Jr. smokes marijuana in a field in New Orleans while talking about marijuana reform in his first campaign ad. On Jan. 1, smokeable medical marijuana became legal in Louisiana under certain conditions....

Chambers, who is Black, opens the new ad titled "37 Seconds" by lighting and smoking a joint as a stopwatch clicks in the background.

He says someone is arrested for possession of marijuana every 37 seconds. “Black people are four times more likely to be arrested for marijuana laws than white people. States waste $3.7 billion enforcing marijuana laws every year,” he goes on....

Chambers, who has never been arrested, ended the ad saying, “Most of the people police are arrested aren't dealers, but rather people with small amounts of pot, just like me.”

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

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.

"New GOP weed approach: Feds must ‘get out of the way’" ... which is an important historic drug policy theme

The first part of the title of this post is the headline of this notable new Politico piece, and the second part draws on this recent short book review that I recently authored for The Federalist Society blog.  I was reviewing Judge Jeffrey Sutton’s majestic Who Decides, in which the judge richly develops and documents why “some matters should not be nationalized” while urging a “renewed appreciation for the virtues of localism.”  In my (too brief) review, I stressed the importance of these localism themes for drug policy throughout US history, and I highlighted this fascinating 1921 Atlantic piece by journalist Louis Graves discussing how alcohol prohibition most effectively gained adherents from a “gradual building up of dry sentiment" at the local level until “Federal interference ... dealt a blow to the cause of real prohibition.”

With Judge Sutton's book and my own affinity for ever-evolving political realities, the long Politico piece by Natalie Fertig and Mona Zhang provides an effective accounting of some structural issues in play in the modern marijuana reform discourse.  I recommend the article in full, and here are excerpts:

Republicans are warming to weed. Nearly half of Republican voters support federally decriminalizing cannabis, and GOP lawmakers are now beginning to reflect their constituents’ view by increasingly supporting broad legalization at the state and federal level.

“We need the federal government just to get out of the way,” said Rep. Nancy Mace (R-S.C.), who introduced the first Republican bill in Congress to decriminalize marijuana this past week and pointed to more than 70 percent of Americans supporting the idea.

Stronger Republican involvement could hasten a snowball effect on Capitol Hill, where Democrats lead the charge on decriminalization but lack results. It could also chip away at Democrats’ ability to use cannabis legalization to excite progressives and younger voters as the midterms approach.

“When the culture becomes more accepting of something, even the most resistant groups get tugged along,” said Dan Judy, vice president of North Star Opinion Research, which focuses on Republican politics. “I don't want to directly conflate marijuana legalization with something like gay marriage, but I think there's a similar dynamic at play.”

Earlier this year, North Dakota’s GOP-dominated House passed a marijuana legalization bill introduced by two Republican lawmakers — the first adult-use legalization bill to pass in a Republican-dominated chamber. And Mace's bill marks the first time a Republican has proposed federal legislation to decriminalize cannabis, expunge certain cannabis convictions and tax and regulate the industry.

As Republicans wade into the weed group chat, they are bringing their principles, constituents and special interest groups. When Mace introduced her bill on a freezing day on the House triangle, she was surrounded at the podium not by Drug Policy Alliance and the National Organization for the Reform of Marijuana Laws, but by veterans groups, medical marijuana parents, cannabis industry lobbyists and Koch-backed Americans For Prosperity.

Many GOP proposals include lower taxes and a less regulatory approach than Democratic-led bills, while often maintaining elements popular among most voters, like the expungement of nonviolent cannabis convictions. “I tried to be very thoughtful about what I put in the bill that would appeal to Democrats and Republicans,” Mace said in an interview on Monday. “Which is why criminal justice reform is part of it. It's why the excise tax is low.”

The motivations bringing Republicans to the table are also changing. Former Capitol Hill cannabis advocates like Sen. Cory Gardner (R-Colo.) and Rep. Dana Rohrabacher (R-Calif.) advocated primarily for their state legalization programs, but Mace comes from South Carolina — a state with no medical or recreational cannabis program. She joins other GOP lawmakers who are pushing for federal policy to move beyond their own states — they include Reps. Matt Gaetz and Brian Mast of Florida, where only medical marijuana is legal, and libertarian-leaning Sen. Rand Paul of Kentucky, which does not yet have a medical program....

Six in 10 younger GOP voters — what Pew described as the “Ambivalent Right” in a recent report — believe marijuana should be legal for medical and recreational use, but older, educated Republicans and Christian conservatives do not feel the same way....

Republicans who support legalization are viewing the issue through the prism of states' rights, personal freedom, job creation and tax revenue. Many libertarian-leaning Republicans are early supporters of cannabis policy reform, arguing that arresting people for using cannabis is a violation of personal liberties.

Some Republicans also cite the racial disparities in marijuana arrests as a reason to fix federal law — though Democrats focus more strongly on criminal justice reform on the whole. And, as is the case for Democrats, the shift is often generational: Texas Young Republicans announced they support marijuana decriminalization back in 2015.

The shift within the GOP at times is less about lawmakers’ own beliefs about marijuana and more about how much the public has shifted on the subject. Bill sponsors in North Dakota, for example, said they were personally opposed to marijuana, but introduced the bill anyways to head off the possibility of a ballot initiative that would legalize marijuana through the constitution — especially after South Dakota voters approved legalization in 2020.

Highlighting the persistent Democratic divide over federal marijuana reform

Those who follow happenings inside the Beltway know that the primary roadblock to federal marijuana reform right now is the debate over whether to make smaller reforms (like the SAFE Banking bill) or to go for a more comprehensive approach to reform.  This lengthy new Washington Post piece, headlined "Democratic divide puts congressional action on marijuana in doubt," effectively review the state of this debate as of mid-November 2021.  I recommend the full piece, and here is how it gets started:

A split on Capitol Hill over marijuana policy has lawmakers confronting the possibility that they could again fail to pass any meaningful changes to the federal prohibition of cannabis this Congress, even as polls show vast majorities of Americans support at least partial legalization of the drug.

The clash, on one level, follows familiar contours for Washington policymaking: A narrower measure with significant bipartisan support — one that would make it easier for banks to do business with legitimate cannabis firms in states where marijuana is legal — is in limbo while a smaller group of lawmakers pushes for a much broader bill.

But it has also become infused with questions of racial equity and political competence that have pitted key Democrats against each other as they seek a way to roll back federal marijuana laws that have gone largely unchanged since the height of the War on Drugs in the 1980s and 1990s.

The conflict has come to a head in recent weeks after a push by Democratic and Republican lawmakers to attach the narrower banking legislation to the must-pass annual defense policy bill, which would ensure its passage in the coming months.  The bill’s advocates say it would offer a substantial step toward legitimizing and rationalizing the cannabis industry in the 47 states that have moved to at least partially legalize marijuana — allowing businesses to move away from risky cash-only operations.

That push has hit a roadblock in the Senate, however, where Majority Leader Charles E. Schumer (D-N.Y.) has sided with Sens. Cory Booker (D-N.J.) and Ron Wyden (D-N.J.), who are seeking to assemble a comprehensive bill that would federally decriminalize the drug, tax it and potentially expunge the criminal records of those previously convicted of having bought or sold it.  Passing the narrower bill, they argue, would make passing their broader bill more difficult....

Some early coverage of big new federal GOP bill, the States Reform Act, to legalize marijuana

Today, Representative Nancy Mace (R-SC) unveiled a new GOP-led bill to legalize marijuana at the federal level.  The States Reform Act (available here), which runs 131 pages, is cosponsored by Representatives Tom McClintock (R-CA), Don Young (R-AK), Brian Mast (R-FL) and Peter Meijer (R-MI).

My initial sense is that this bill does not have a great chance of passage anytime soon, but it still ought to be considered a big moment in the broad modern story of marijuana reform.  And it is understandably getting a lot of press.  Here is a sample:

From the AP, "GOP Rep. Mace’s bill would federally decriminalize marijuana"

From Forbes, "Representative Nancy Mace Introduces Bill To End Federal Cannabis Prohibition"

From Insider, "Rep. Nancy Mace says her GOP-led cannabis legalization bill would be 'a real win-win' for bipartisan marijuana reform in the US"

From Marijuana Moment, "Republican Lawmakers File Bill To Tax And Regulate Marijuana As Alternative To Democratic Proposals"

From MJBizDaily, "South Carolina Republican reveals marijuana legalization bill she’ll introduce in Congress"

From Reason, "Frequently asked questions about the States Reform Act, a proposed marijuana bill"

"Cannabis Crossroads: What’s in Store for Marijuana Reform in Ohio?"

The title of this post is the title of this exciting event taking place online two weeks from today that I have the honor of moderating.  As detailed at this registration page, the event will take place on Friday, Nov. 19, 2021 from Noon - 1:30pm.  Here are the basics with the list of confirmed speakers:

Join the Drug Enforcement and Policy Center and Natural Therapies Education Foundation for a virtual discussion featuring panelists representing current Ohio cannabis reform endeavors.  The event will provide attendees with knowledge about pending initiatives and legislation, as well as a vision of what the future may hold for cannabis in Ohio.

Panelists

Mary Jane Borden, co-founder and secretary of the board, Natural Therapies Education Foundation

Thomas Haren, partner, Frantz Ward

Shaleen Title, distinguished cannabis policy practitioner in residence, Drug Enforcement and Policy Center, The Ohio State University

Rep. Casey Weinstein, Ohio House of Representatives

Moderator

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law, executive director, Drug Enforcement and Policy Center, Moritz College of Law, The Ohio State University

Notable new CRS report on ways a President could legalize or decriminalize marijuana at the federal level

I was intrigued to see this notable new five-page Congressional Research Service report titled "Does the President Have the Power to Legalize Marijuana?". Here is how it gets started:

The legal status of marijuana has been a topic of recurring interest in recent years, as states, federal legislators, and federal executive agencies consider how to regulate cannabis and its derivatives.  What role can the President play in determining the legal status of a controlled substance such as marijuana?  That question came to the forefront during the 2020 Democratic presidential primary, with multiple candidates supporting legalization of marijuana and several pledging to legalize the substance nationwide if elected, either indirectly through administrative proceedings or directly by executive order.  More recently, some commentators have called on President Biden to end criminal penalties for marijuana possession and use or grant clemency to federal marijuana offenders.  Although the President cannot directly remove marijuana from control under federal controlled substances law, he might order executive agencies to consider either altering the scheduling of marijuana or changing their enforcement approach.

This Sidebar outlines the laws that apply to controlled substances like marijuana, then analyzes several approaches a president might take to change controlled substances law as written or as enforced.  The Sidebar closes with a discussion of key considerations for Congress related to presidential power over controlled substances regulation.

Drug Policy Alliance's federal marijuana reform recommendations

Earlier this month, I received an email with links to the helpful work completed by the Drug Policy Alliance setting forth a vision for federal marijuana reforms.  Here is the text and links from the email:

Today, the Drug Policy Alliance released new federal cannabis recommendations, that provide a framework for Congress to ensure that reparative justice, social and health equity, and community reinvestment are the central goals of federal regulation.  Over the last year, as federal legalization has become more of a reality, we have seen the industry jockeying to regulate themselves, and there is a very real concern that — if not done right — legalization could end up replicating many of the same harms of prohibition, especially for communities of color.

These recommendations are the product of months of discussion and work from a working group we convened of cannabis state regulators, public health professionals, criminal justice reform advocates, civil rights attorneys, people working with directly impacted communities, re-entry advocates, academics and an expert involved in Canada’s cannabis regulation.

You can see a quick one-page explainer of what the recommendations are here, and a more detailed document that explains all of the recommendations in depth here.

Is marijuana legalization likely to be a staple of all major Democratic campaigns in 2022?

The question in the title of this post is prompted by this new Hill piece headlined "Crist says as Florida governor he would legalize marijuana, expunge criminal records."  Here are excerpts:

Rep. Charlie Crist (D-Fla.) on Thursday said that he would expunge criminal records of those facing certain marijuana-related charges and legalize the drug if he is elected the governor of Florida.  “Let me be clear: If I’m elected governor, I will legalize marijuana in the Sunshine State,” Crist said in a video posted on his Twitter on Thursday. “This is the first part of the Crist contract with Florida.”

Crist, who is running for the Democratic nomination to take on Gov. Ron DeSantis (R) in 2022, discussed different elements of his gubernatorial platform focused on racial equity in the state, including expunging criminal records for those who have received marijuana-related charges, specifically third-degree felonies and misdemeanors, the Tampa Bay Times reported.

The former Florida governor and Senate hopeful also said that he was in favor of decentralizing the marijuana industry, allowing people to personally grow marijuana plants.  He noted that money made through marijuana sales would fund things such as drug treatment programs and police agencies, according to the news outlet.

Crist, who was a Republican while he was in the governor's mansion from 2007 to 2011, acknowledged that his stance, among others, had changed on marijuana use.  As governor, he had signed harsh anti-marijuana legislation, which included targeting growing the plant.

His comments were criticized over Twitter by Democratic opponent Nikki Fried, who is also running to take on DeSantis. The state Agriculture commissioner, who has been previously supportive of legalizing marijuana and was a former marijuana lobbyist, according to Tallahassee Reports, accused him of imitating her political stance.

“Imitation is flattery, but records are records. People went to jail because Republicans like @CharlieCrist supported and enforced racist marijuana crime bills. Glad he's changed his mind, but none of those people get those years back. Legalize marijuana. #SomethingNew,” Fried tweeted.

Crist last year voted to end marijuana from being prohibited and criminalized federally. “We know that people across racial and income levels use marijuana at the same rate.  And yet, for decades, it's been poor, Black, and/or Hispanic folks targeted for prison on marijuana charges,” Crist said in a statement in December.  “That tells me that marijuana has been legal now for a while if you had the right skin tone or the right paycheck.”

I surmise that all major Democratic candidates have finally figured out that marijuana reform is a popular position. It will be interesting to watch if this issue could become significant debate topic is red-leaning swing states like Florida and Ohio that have big 2022 elections. I am inclined to believe this topic still is more fringe than fundamental in broader political discourse, but even topics that only move the electorate a little bit could prove consequential sometimes.

House Judiciary Committee, by vote of 26-15, approves MORE Act to deschedule marijuana and thereby end federal prohibition

After what reportedly was quite an intriguing discussion, this afternoon the House Judiciary Committee approved  the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, H.R. 3617, with 26 votes in favor (24 Democrats, 2 Republicans) and 15 votes (all Republicans) against. The MORE Act, as noted in this post from DEC 2020, received a full favorable vote from the House. But at that time, everyone knew there would be no time and likely little interest in Senate action before the Congress term ended. Now there is ample time for the Senate to pass MORE or another like bill, though I think there is considerable uncertainty about there being enough votes for reform.

In case you forgot, in addition to removing marijuana from the prohibitions created by the Controlled Substances Act, the MORE Act would expunge non-violent federal marijuana convictions and support state efforts to do the same, while also providing provide resources and support for minority owned marijuana businesses and creating other reinvestment programs for communities that have been adversely impacted by marijuana prohibitions.  Here is a bit more from this Marijuana Moment piece:

Although most Republicans who spoke argued against the bill, Rep. Matt Gaetz (R-FL), who is a cosponsor of it, made the case for reform.

“I am a proud co-sponsor of the MORE Act because the federal government has screwed up marijuana policy in this country for a generation,” he said. “We lied to people about the effects of marijuana. And then we used marijuana as a cudgel to incarcerate just wide swaths of communities, and particularly in African-American communities.”

“We cannot honestly say that the war on drugs impacted suburban white communities in the same way it affected urban black communities. We can’t say that marijuana enforcement was happening the same way on the corner than it was happening in the fraternity house,” he said. “We have an opportunity to fix that problem. The war on drugs, much like many of our forever wars, has been a failure. If there’s been a war on drugs, drugs have won that war.”

However, he expressed certain concerns about provisions of the legislation such as the proposed federal excise tax on cannabis sales. While Gaetz also said that while he supports the MORE Act, he doesn’t feel it stands a chance in the Senate and recommended advancing more modest reform.

While the legislation has largely stayed intact compared to the prior version that passed the chamber last year in a historic vote, there were some modest revisions that were incorporated upon its reintroduction in May.

The panel on Thursday considered additional changes before moving the measure forward, although much of the time was spent debating unrelated issues such as COVID-19 vaccines, abortion policy and protests against police violence.

Rep. Thomas Massie (R-KY) sought to remove the bill’s tax provisions as well as grant funds it would create to help repair the harms of the war on drugs.

Notable and dynamic marijuana legalization efforts in bellwether (or deep red) Ohio

Perhaps because I live and work in Ohio, I still tend to consider the state a national bellwether politically.  But, in recent elections (due in part to gerrymandering as well as to other factors), the state has been quite red politically with  GOP candidates winning the vast majority of statewide and local elections.  Whether now considered a bellwether or a deep red state, recent developments on the marijuana reform front strike me as quite interesting and worth watching in the months ahead.  Here are the basics from two great Marijuana Moment articles:

From July 15, "Ohio Lawmakers To File First-Of-Its-Kind Marijuana Legalization Bill As Activists Pursue Local Reforms":

Ohio lawmakers are preparing to file a bill to legalize and regulate marijuana in the state. This would mark the first time such a proposal to allow recreational cannabis commerce has been introduced in the legislature. Rep. Casey Weinstein (D) is sponsoring the legislation alongside Rep. Terrence Upchurch (D). While the text of the measure has not yet been released, the lawmakers circulated a co-sponsorship memo to colleagues on Thursday to shore up support for the effort in advance of its formal introduction....

The bill would legalize possession of up to five ounces of cannabis for adults 21 and older and allow them to cultivate up to 12 plants for personal use. It will also include provisions to expunge prior convictions for possession and cultivation activities that are being made legal under the measure.

A 10 percent excise tax would be imposed on marijuana sales, with revenue first going toward the cost of implementation and then being divided among municipalities with at least one cannabis shop (15 percent), counties with at least one shop (15 percent), K-12 education (35 percent) and infrastructure (35 percent).

From July 27, "Ohio Marijuana Activists Launch Ballot Campaign To Push Lawmakers To Enact Legalization":

Ohio marijuana activists have a new plan to legalize cannabis in the state as lawmakers pursue separate reform legislation.  Voters rejected a 2015 legalization initiative, and advocates suspended a campaign to place another measure on the 2020 ballot due to the coronavirus pandemic.  But on Tuesday, the Coalition to Regulate Marijuana Like Alcohol (CTRMLA) launched a new effort to implore legislators to enact the policy change.

The group submitted the requisite 1,000 signatures to the Ohio attorney general’s office on Tuesday.  Officials now have 10 days to review the summary and text to ensure that it is “fair and truthful” and approve it for circulation. Several existing medical cannabis businesses are backing the measure....

Unlike past efforts, the new measure is a statutory, rather that a constitutional, proposal.  If supporters collect 132,887 valid signatures from registered voters, the legislature will then have four months to adopt the measure, reject it or adopt and amended version.  If lawmakers do not pass the proposal, organizers will then need to collect an additional 132,887 signatures to place the measure before voters on the ballot in 2022.

The start of an statutory initiative campaign, which gives the Ohio General Assembly a chance to act on proposed reforms before the proposal goes directly to the voters, strikes me as especially shrewd and interesting.  This approach will likely keep the issue in the news in ways that ought to be helpful to reform proponents (e.g., they can discuss tax revenues and the need for Ohio to keep up with its reform neighbors); and this approach may require many state legislators to have to express a position on reform in a run-up to an off-year election in which a topic like marijuana reform could help turn out some extra voters.  Interesting times.

Some federal reform headlines a week after introduction of the Cannabis Administration and Opportunity Act

My Google and Twitter feeds have not been buzzing about the release last week of the discussion draft of the Cannabis Administration and Opportunity Act, and that has lead me to think nobody is too excited about its particulars. That said, it is still an important bill-in-development, and I thought it worthwhile to round up some of the reactions and commentary I have seen in response:

From The American Prospect, "High Hurdles for Commonsense Cannabis Reform: The plan unveiled by the Senate majority leader is doomed to languish despite massive public support for legalization."

From Bloomberg, "U.S. Pot Legalization Bill Gets a Frosty Reception"

From Daily Breeze (editorial), "Latest federal marijuana bill a total dud"

From Fox Business, "Democrats' marijuana legalization bill leaves Canopy Growth CEO optimistic"

From Politico, "Amazon endorsed legal weed. Will it now fight to make it happen?"

Great early coverage of US Senate Leader Chuck Schumer's "discussion draft" of new Cannabis Administration and Opportunity Act

Since nearly the start of this year, Senate Majority Leader Chuck Schumer, along with  Senators Ron Wyden and Cory Booker , has been talking up the introduction in the US Senate of a new comprehensive federal marijuana reform bill.   That talk has suggested that reform efforts from these Democratic Senators would be similar to, but still quite distinct from, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, that has moved forward in the House of Representatives in recent years.

Today, in mid July 2021, these Senators have scheduled a press conference to unveil what is being described as a "discussion draft" of a lengthy federal bill titled the Cannabis Administration and Opportunity Act (CAOA).  The full text of this CAOA "discussion draft" is available here and it runs 163 pages(!).  In other words, CAOA give marijuana reform advocates (and opponents) a whole lot to discuss.  Helpfully, the cannabis press core is already doing great job covering the basic:

From Marijuana Moment, "Here Are The Full Details Of The New Federal Marijuana Legalization Bill From Chuck Schumer And Senate Colleagues."  Excerpt:

Perhaps the most immediately consequential provision would be a requirement that the attorney general to remove marijuana from the Controlled Substances Act within 60 days of the bill’s enactment.  But it’s important to keep in mind that this legislation—like other federal legalization bills moving through Congress—would not make it so marijuana is legal in every state. The proposal specifically preserves the right of states to maintain prohibition if they way. It stipulates, for example, that shipping marijuana into a state where the plant is prohibited would still be federally illegal.

However, the measure would make it clear that states can’t stop businesses from transporting cannabis products across their borders to other states where the plant is permitted.  FDA would be “recognized as the primary federal regulatory authority with respect to the manufacture and marketing of cannabis products, including requirements related to minimum national good manufacturing practice, product standards, registration and listing, and labeling information related to ingredients and directions for use,” according to the summary.

From Politico, "Schumer launches long-shot bid for legal weed." Excerpt:

The discussion draft of the Cannabis Administration and Opportunity Act includes provisions that cater to both “states rights” Republicans and progressive Democrats. While the proposal seeks to remove all federal penalties on weed, it would allow states to prohibit even the possession of cannabis — along with production and distribution — a nod to states’ rights.  It would also establish funding for a wide range of federal research into everything from drugged driving to the impact cannabis has on the human brain. The measure aims to collect data about traffic deaths, violent crime and other public health concerns often voiced by Republican lawmakers.

On the flip side, the proposal also includes provisions that are crucial to progressives.  That includes three grant programs designed to help socially or economically disadvantaged individuals, as well as those hurt by the war on drugs and expungements of federal non-violent cannabis offenses.  States and cities also have to create an automatic expungement program for prior cannabis offenses to be eligible for any grant funding created by the bill.

A few of many prior recent related posts:

• Senate majority leader shrewdly emphasizing "freedom" in his push for federal marijuana reform
• Red state marijuana reforms not yet leading to GOP Senator support for federal reform
• Key Democratic Senators pledging to soon "release a unified discussion draft" to advance "comprehensive cannabis reform legislation in the 117th Congress"
• Cannabis Freedom Alliance releases "Recommendations for Federal Regulation of Legal Cannabis"
• Notable new GOP bill for ending federal marijuana prohibition
• Notable working group releases new "Principles for Federal Cannabis Regulations & Reform"
• US Senate caucus releases notable new report, "Cannabis Policy: Public Health and Safety Issues and Recommendations"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Array of marijuana reforms move forward in array of states

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

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

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

"Louisiana lawmakers pass bill to decriminalize marijuana"

"Mississippi Senate weighs in on medical cannabis legalization"

"Nevada Governor Signs Bill Legalizing Marijuana Consumption Lounges"

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

"Medical marijuana law changes get through Pennsylvania House"

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

Could reintroduction of MORE Act in US House actually make federal marijuana reform less likely?

The question in the title of this post is my initial reaction and worry in response to this press release from the office of House Judiciary Chair Jerry Nadler.  Here are some basics from the release:

Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY), along with Representatives Earl Blumenauer (D-OR), Barbara Lee (D-CA), Sheila Jackson Lee (D-TX), Hakeem Jeffries (D-NY) and Nydia Velázquez (D-NY) reintroduced the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, one of the most comprehensive marijuana reform bills ever introduced in the U.S. Congress.

"Since I introduced the MORE Act last Congress, numerous states across the nation, including my home state of New York, have moved to legalize marijuana. Our federal laws must keep up with this pace," said Chairman Nadler. "I’m proud to reintroduce the MORE Act to decriminalize marijuana at the federal level, remove the needless burden of marijuana convictions on so many Americans, and invest in communities that have been disproportionately harmed by the War on Drugs. I want to thank my colleagues, Representatives Barbara Lee and Earl Blumenauer, Co-Chairs of the Congressional Cannabis Caucus, as well Representatives Sheila Jackson Lee, Hakeem Jeffries, and Nydia Velázquez for their contributions to this legislation, and I look forward to our continued partnership as we work to get this legislation signed into law."...

Following efforts led by states across the nation, the MORE Act decriminalizes marijuana at the federal level. The bill also aims to correct the historical injustices of failed drug policies that have disproportionately impacted communities of color and low-income communities by requiring resentencing and expungement of prior convictions. This will create new opportunities for individuals as they work to advance their careers, education, and overall quality of life. The MORE Act also ensures that all benefits in the law are available to juvenile offenders....

In the 116th Congress, Chairman Nadler led the House of Representatives in passing the MORE Act by a bipartisan vote of 228 to 164.

Because the MORE Act is a very ambitious bill, it has lots of support from many advocacy groups and long-time supporters of marijuana reform. But because the MORE Act is a very ambitious bill, it got no traction in the Senate in the last Congress and there is little reason to be confident it will get any traction in the Senate in this Congress. 

This Politico article last month, headlined "Senate Democrats split over legalizing weed; Several told POLITICO they’re opposed to Majority Leader Chuck Schumer's legalization push," highlighted that not even all Senate Democrats are inclined to support federal marijuana legalization.  That article also rightly noted that there are some particular provisions in the MORE Act that are especially likely to turn off libertarian-leaning GOP Senators who might be inclined to support another kind of federal reform.

Because I have never work on the hill, I am not sure if a bill like the MORE Act with little chance of actual passage can still help advance the reform cause.  But I am sure that the current President and the current Congress seem generally disinclined to do anything all that big in this arena.  The MORE Act is not only big, but it also presents the possibility of indirectly thwarting smaller efforts garnering needed support and momentum going forward.

In this post last month, I suggested that Senator leader Chuck Schumer may have a shrewd view of how best to advance marijuana reform legislation in his chamber.  But I remain worried that there really is neither a will nor a way for big federal marijuana reforms like the MORE Act to become law anytime soon.