Tuesday, July 7, 2020
The title of this post is the title of this significant new digital book put together by Chris Nani now available via SSRN. I am proud to be able to say Chris is a former student who has been doing amazing work in the cannabis space since his time in law school (including the development of a great tool for judging social equity programs available as "Social Equity Assessment Tool for the Cannabis Industry"). In his new book, Chris has assembled short and effective essays from more than a dozen experts; here is the book's SSRN abstract:
Understanding Social Equity is a compilation of viewpoints from various authors with diverse backgrounds. From attorneys, policy analysts, and journalists to advocates, business owners, and social equity applicants, my goal was to provide as many perspectives as possible – some of which may conflict with other authors to provide regulators a wide range of respected opinions about social equity programs. Together, we believe this compilation can be used as a guide for drafters and regulators when determining minute details about how they would like to create or improve their social equity program.
The goal of this book can further be defined into four objectives:
● Educate regulators on what social equity programs are and their importance.
● Why certain criteria should be used to define social equity applicant eligibility.
● An analysis of prior social equity programs.
● Key factors for social equity programs.
I was quite honored that Chris asked me to author an essay for this book. My contribution is titled simply "Tracking Social Equity," and here is how it begins:
Chris Nani, in the first sentence of his preface to this volume, defines social equity programs as those that “seek to remediate and help individuals, families, and communities harmed by the War on Drugs.” Behind this crisp definition of social equity programs stands a series of complicated questions about just who should be the focal point for remediation and help and how these programs should be oriented and assessed. By starting to unpack these questions, we can begin to appreciate just why these programs are so important in principle and so challenging in practice.
July 7, 2020 in Business laws and regulatory issues, Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Friday, July 3, 2020
Is it growing clearer that marijuana reform is criminal justice reform and racial justice imperitive?
The question in the title of this post is prompted by this new Crime Report piece headlined "Marijuana Laws ‘Central’ to Justice Reform, Advocates Say." Here is how it starts:
As protests against racism continue to march on across the country, conversations have sparked a new dialogue about policing, criminal and racial justice, and even the War on Drugs.
Lawmakers and advocates alike say the latter of these dialogues must play “a central part,” seeing that the War on Drugs and policing of marijuana usage has disproportionately targeted Black Americans, and encouraged negative police interactions, Stateline and Brookings report.
In light of these discussions, some states are taking active roles in changing the current narrative.
I would also recommend these linked pieces from Stateline and Brookings:
- "Policing Protests Propel Marijuana Decriminalization Efforts"
- "Marijuana’s racist history shows the need for comprehensive drug reform"
Tuesday, June 23, 2020
The JAMA Internal Medicine journal has this week published online notable new original research and commentary on roadway fatalities in some states that have legalized marijuana use by all adults (called RCL in the works). Here is the main piece and its main results and conclusions from its abstract:
Implementation of RCLs was associated with increases in traffic fatalities in Colorado but not in Washington State. The difference between Colorado and its synthetic control in the post-RCL period was 1.46 deaths per 1 billion vehicle miles traveled (VMT) per year (an estimated equivalent of 75 excess fatalities per year; probability = 0.047). The difference between Washington State and its synthetic control was 0.08 deaths per 1 billion VMT per year (probability = 0.674). Results were robust in most sensitivity analyses. The difference between Colorado and synthetic Colorado was 1.84 fatalities per 1 billion VMT per year (94 excess deaths per year; probability = 0.055) after excluding neighboring states and 2.16 fatalities per 1 billion VMT per year (111 excess deaths per year; probability = 0.063) after excluding states without MCLs. The effect was smaller when using the enactment date (24 excess deaths per year; probability = 0.116).
Conclusions and Relevance
This study found evidence of an increase in traffic fatalities after the implementation of RCLs in Colorado but not in Washington State. Differences in how RCLs were implemented (eg, density of recreational cannabis stores), out-of-state cannabis tourism, and local factors may explain the different results. These findings highlight the importance of RCLs as a factor that may increase traffic fatalities and call for the identification of policies and enforcement strategies that can help prevent unintended consequences of cannabis legalization.
And here are two follow-up pieces published with this main piece:
June 23, 2020 in Criminal justice developments and reforms, Medical community perspectives, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (1)
Wednesday, June 17, 2020
"Retroactive Legality: Marijuana Convictions and Restorative Justice in an Era of Criminal Justice Reform"
The title of this post is the title of this recent article authored by Deborah Ahrens on one of my favorite topics. Here is its abstract:
The last decade has seen the beginning of a new era in United States criminal justice policy, one characterized by a waning commitment to over-criminalization, mass incarceration, and a punitive War on Drugs as well as a growing regret for the consequences of our prior policies. One of the central questions raised by this shifting paradigm is what to do about the millions of individuals punished, marked, and shunned as a result of policies we now regret. This issue is particularly pointed for marijuana convictions, as the coexistence of strict regimes of collateral consequences for drug convictions and the active government promotion of a new cannabis economy present a stark and deeply racialized contrast.
This Article argues that, in states where marijuana has been legalized, our policy-making apparatus should acknowledge and move to redress both the failings of our prior system of drug regulation and the social and economic disparities in current law by embracing a concept of “retroactive legality.” Retroactive legality is a framework in which we seek to restore those convicted of marijuana crimes to the rights and civic status they would have had if their conduct had never been illegal. Such an approach would build upon the piecemeal expungement and pardon policies adopted or proposed in some of these jurisdictions but would reach substantially further, by incorporating those convicted of more serious offenses, putting the onus on the state to identify and clear such convictions, and declining to impose additional requirements and costs on those seeking to have their convictions retroactively legalized.
Monday, June 15, 2020
Timely reminders that marijuana reform is criminal justice reform ... especially when Black Lives Matter
Long-time readers know that I have long viewed marijuana reform as a form of criminal justice reform. And, at a time when we are all rightly concerned about police encounters with people of color and systemic racism in our criminal justice systems, it is more than fitting that some legislators and commentators are highlighting how we might improve our criminal justice system by reforming our marijuana laws. Here are three pieces and brief excerpts:
Sens. Bernie Sanders (I-VT) and Cory Booker (D-NJ) discussed the role of marijuana criminalization and the broader drug war in perpetuating racial injustices during an online town hall on Wednesday. The former 2020 presidential candidates touched on a variety of drug-related policy issues. For example, Booker brought up an ongoing ban on access to coronavirus relief programs for business owners with prior drug convictions and said it’s an example of why the two senators “talk about marijuana justice all the time.”
"Criminalization that never should have been: Cannabis" by Justin Strekal:
In short, the prohibition and criminalization of cannabis were, and still is, a racially motivated public policy response to personal behavior that is, at worst, a public health matter. But this should have never been a pretext for expanding police powers to search, incarcerate and arrest millions of American citizens. Annually, over 650,000 Americans are arrested for violating marijuana laws. According to an analysis of these arrests released earlier this year by the ACLU, “In every single state, Black people were more likely to be arrested for marijuana possession, and in some states, Black people were up to six, eight, or almost ten times more likely to be arrested. In 31 states, racial disparities were actually larger in 2018 than they were in 2010.”
"Racist cannabis arrests put Black Americans at higher risk of Covid-19" by Jenni Avins:
Even as cannabis reform sweeps the nation, offering Americans access to state-regulated cannabis-infused gummies and designer vape pens — and entrepreneurs the opportunity to sell them — poor people are still behind bars for possessing or selling the plant. Statistically speaking, there’s a very good chance those people are Black.
The American Civil Liberties Union (ACLU) reports cannabis arrests still make up some 43% of all drug-related arrests, the vast majority of which are for possession, as opposed to more serious charges such as distribution or sale. A 2017 study by the National Registry of Exonerations found that Blacks were five times as likely as whites to go to prison for drug possession — despite that surveys show whites use drugs as much or more than Blacks in the US. In some places the statistics are markedly worse. In 2018, Blacks and Latinos accounted for nearly 90% of arrests for cannabis possession in New York City, despite being just 51% of the city’s population. And in every single state, Blacks were likelier than whites to be arrested for cannabis possession. (Florida and Washington, DC did not provide data.)
Friday, June 12, 2020
Nevada Gov announces plan to secure pardons for "tens of thousands of Nevadans previously convicted for possession of small amounts of marijuana"
As reported by this tweet, the Governor of Nevada, Steve Sisolak, has placed "a resolution on the Board of Pardons Commissioners agenda next week to provide relief to tens of thousands of Nevadans previously convicted for possession of small amounts of marijuana, which is no longer a crime in the State." This Marijuana Moment article by Kyle Jaeger provides some context for this action and other notable recent gubernatorial activity in this arena:
Last year, the governor signed a bill providing people with cannabis convictions a means to petition the court for expungements, but this resolution would offer proactive pardons for anyone convicted of possession up to an ounce of marijuana.
“The people of Nevada have decided that possession of small amounts of marijuana is not a crime,” Sisolak said, referencing the state’s 2016 vote to legalize cannabis for adult use. “If approved, this resolution will clear the slate for thousands of people who bear the stigma of a conviction for actions that have now been decriminalized.”
The board is set to meet on Wednesday, June 17. The agenda designates time for “a discussion that may include but not limited to the resolution regarding pardons for persons convicted of minor marijuana possession.” While pardons don’t void convictions, they can restore rights such as the right to vote, own a firearm or serve on a jury.
Meanwhile, other top state officials have recently made arguments that marijuana reform is a necessary civil rights issue that’s particularly important to pursue as a means of addressing racial inequities. California Gov. Gavin Newsom (D) said last week that legalization was “about addressing the ills of this war on drugs.”
The governor of Virginia said on Tuesday that the passage of marijuana decriminalization legislation this year represents an example of how his state has addressed racial inequities that are inspiring mass protests over recent police killings of black Americans.
Monday, June 8, 2020
The title of this post is the headline of this timely new Forbes piece worth reading in full. Here are excerpts:
Bribing the cops is illegal, but not in politics. Without paying off the cops, California might not have legalized recreational cannabis.
But now, four years later, with the legal industry struggling and police unable to protect legal merchants from either the illicit market or organized thieves, there’s serious doubt whether devoting tax revenue from marijuana sales to police budgets was smart politics. And in light of calls to defund or cut police spending throughout the country, California’s experience is a warning for legalization efforts in other states. Should police get a cut before education, healthcare, or disadvantaged communities shut out of the legal market? And does law enforcement have any business making money off of legalization at all?
Eager to sell regulating and taxing cannabis to uneasy suburban and conservative voters, the authors of Proposition 64, the Adult Use of Marijuana Act, offered the state’s powerful law-enforcement lobbies a gift. Twenty percent of the promised $1 billion in annual tax revenue legalization would create was earmarked for “public safety.” Legalization advocates heard an earful from growers and merchants eager to go legal — why reward the crews that had spent decades trying to arrest them? — but it was sold as necessary and practical electoral strategy. And from a public-safety standpoint, the gambit worked — sort of. Though the cop lobbies opposed the measure anyway, they also didn’t run a massive scare campaign. On Election Day 2016, AUMA won more than 57 percent of the vote....
Similar tactics have been employed elsewhere. California’s generosity was notable only in its size. Marijuana legalization has meant money for American police everywhere the social experiment’s been tried.... In Nevada, pot taxes help pay the police to “enforce” the measure (along with, one assumes, other laws). In Colorado, cannabis taxes fund diversion and addiction-recovery programs, which are administered by the police. In Portland, Oregon, most of a special 3 percent city tax on cannabis, part of which was meant to help jump-start minority entrepreneurs, somehow ended up in the police budget, infuriating local lawmakers who thought the cash would go to minority entrepreneurs....
Either Arizona, New Jersey, or maybe New Mexico or New York will be the next state to legalize cannabis for adults. All need money, badly. And in all states, elected officials and policymakers have suggested cannabis could provide that money. This is the ATM argument for legalization. But anyone running those campaigns will now have a harder sell promising cash to cops — at all, and not just up front.
As for California, lawmakers are now in a bind. “I can think of a lot of betters uses of those funds,” said Matt Kumin, a San Francisco-based lawyer who advocated for Prop. 64’s passage. In the coronavirus pandemic, with millions of Americans going untested for COVID-19 symptoms and millions more out of work, he’s not the only one.
Redirecting legalization money away from police budgets will require modifying the voter-approved legalization law. This can probably be done by the state Legislature, but not without a fight. “The cops use blackmail, threaten, and practice low enforcement activity if pols threaten their budgets,” Kumin added. Hints of this were underway before the pandemic and the protests. In December, an effort to cut local weed taxes in Oakland, where Goldsberry and other merchants paid a 10 percent local tax on top of state taxes, in order to stimulate the industry was opposed — by the local police union.
Defunding the police will be a lengthy and divisive political project. Whether legalization should fund the police in the first place may be a question settled much sooner.
Tuesday, June 2, 2020
New research on racial disparities in traffic stops and searches highlights how marijuana reform reduces searches (but not racial disparities)
The events of the last week with its focus on police practices make all the more notably this already notable recent study, titled " A large-scale analysis of racial disparities in police stops across the United States," published by the journal Nature Human Behavior. Here is the article's abstract, with one line highlighted:
We assessed racial disparities in policing in the United States by compiling and analysing a dataset detailing nearly 100 million traffic stops conducted across the country. We found that black drivers were less likely to be stopped after sunset, when a ‘veil of darkness’ masks one’s race, suggesting bias in stop decisions. Furthermore, by examining the rate at which stopped drivers were searched and the likelihood that searches turned up contraband, we found evidence that the bar for searching black and Hispanic drivers was lower than that for searching white drivers. Finally, we found that legalization of recreational marijuana reduced the number of searches of white, black and Hispanic drivers — but the bar for searching black and Hispanic drivers was still lower than that for white drivers post-legalization. Our results indicate that police stops and search decisions suffer from persistent racial bias and point to the value of policy interventions to mitigate these disparities.
Here is more from the text of the article in the section titled "The effects of legalization of marijuana on stop outcomes":
In line with expectations, we find that the proportion of stops [in Colorado and Washington] that resulted in either a drug-related infraction or misdemeanour fell substantially in both states after marijuana was legalized at the end of 2012....
[Also] we found that after the legalization of marijuana the number of searches fell substantially in Colorado and Washington (Fig. 4), ostensibly because the policy change removed a common reason for conducting searches.
Because black and Hispanic drivers were more likely to be searched before legalization, the policy change reduced the absolute gap in search rates between race groups; however, the relative gap persisted, with black and Hispanic drivers still more likely to be searched than white drivers post-legalization. We further note that marijuana legalization had secondary impacts for law-abiding drivers, because fewer searches overall also meant fewer searches of those without contraband. In the year after legalization in Colorado and Washington, about one-third fewer drivers were searched with no contraband found than in the year before legalization.
As further evidence that the observed drop in search rates in Colorado and Washington was due to marijuana legalization, we note that in the 12 states where marijuana was not legalized — and for which we have the necessary data — search rates did not exhibit sharp drops at the end of 2012 (Fig. 5).
Despite the legalization of marijuana decreasing search rates across race groups, Fig. 4 shows that the relative disparity between whites and minorities remained. We applied the threshold test to assess the extent to which this disparity in search rates may reflect bias. Examining the inferred thresholds (shown in Supplementary Fig. 3), we found that white drivers faced consistently higher search thresholds than minority drivers, both before and after marijuana legalization. The data thus suggest that, although overall search rates dropped in Washington and Colorado, black and Hispanic drivers still faced discrimination in search decisions.
Wednesday, May 27, 2020
"The heterogeneous effect of marijuana decriminalization policy on arrest rates in Philadelphia, Pennsylvania, 2009–2018"
The title of this post is the title of this new research to appear in the July 2020 issue of the journal Drug and Alcohol Dependence. Here is the article's abstract:
Marijuana decriminalization holds potential to reduce health inequities. However, limited attention has focused on assessing the impact of decriminalization policies across different populations. This study aims to determine the differential effect of a marijuana decriminalization policy change in Philadelphia, PA on marijuana arrests by demographic characteristics.
Using a comparative interrupted time series design, we assessed whether the onset of marijuana decriminalization in Philadelphia County was associated with reduction in arrests rates from 2009 to 2018 compared to Dauphin County. Stratified models were used to describe the differential impact of decriminalization across different demographic populations.
Compared to Dauphin, the mean arrest rate for all marijuana-related crimes in Philadelphia declined by 19.9 per 100,000 residents (34.9% reduction), 17.1 per 100,000 residents (43.1% reduction) for possession, and 2.8 per 100,000 resident (15.9% reduction) for sales/manufacturing. Arrest rates also differed by demographic characteristics post-decriminalization. Notably, African Americans had a greater absolute/relative reduction in possession-based arrests than Whites. However, relative reductions for sales/manufacturing-based arrests was nearly 3 times lower for African Americans. Males had greater absolute/relative reduction for possession-based arrests, but lower relative reduction for sales/manufacturing-based arrests compared to females. There were no substantial absolute differences by age; however, youths (vs. adults) experienced higher relative reduction in arrest rates.
Findings suggest an absolute/relative reduction for possession-based arrests post-decriminalization; however, relative disparities in sales/manufacturing-based arrests, specifically for African Americans, increased. More consideration towards the heterogeneous effect of marijuana decriminalization are needed given the unintended harmful effects of arrest on already vulnerable populations.
Saturday, May 9, 2020
The title of this post is the title of this notable new article authored by Mitchell Crusto that I just came across and that was recently published in the Spring 2020 issue of the Hastings Constitutional Law Quarterly. Here is its abstract:
There are a growing number of States that have legalized marijuana, challenging the view that marijuana is a dangerous drug. These States are taking positions relative to both the retroactivity of the new laws and to amelioration of past offenses, which arguably contradict United States Supreme Court decisions on the retroactivity of changes in substantive criminal standards. And, many States recognize that past marijuana laws have greatly contributed to the problems related to a broken criminal justice system, including mass incarceration and racial disparities, particularly to the devastation of communities of color.
In response to these legal developments, this Article advances the normative claim that past pot offenders are entitled to retroactive amelioration, in States that have legalized marijuana. This Article argues that such retroactive amelioration has deep support in constitutional provisions and U.S. Supreme Court decisions. Moreover, it suggests that, due to large numbers of offenders, over a long period of time, retroactive amelioration is best achieved through the use of amnesty.
Friday, May 1, 2020
Though I have been thinking about the question in the title of this post for a few weeks now, this new Marijuana Moment article finally got me to work on this post. The piece is titled "Thousands Of Constituents Urge Governors To Deprioritize Marijuana Enforcement Amid Coronavirus," and here are excerpts:
The marijuana reform group NORML is leading an effort to encourage states to deprioritize the enforcement of cannabis criminalization amid the coronavirus pandemic. So far, more than 4,000 constituents across the country have participated in the organization’s action campaign launched on Wednesday by sending messages to their governors, urging them to take steps to minimize the spread of the virus by avoiding unnecessary marijuana arrests.
NORML created customized email blasts to supporters in all 39 states that have yet to legalize marijuana for adult use. Each one contains a link to a suggested prewritten letter asking the governor to abide by the group’s public health recommendations during the COVID-19 outbreak.
Beyond deprioritizing marijuana enforcement, the organization said states should also drop existing charges for nonviolent cannabis violations “in order to reduce non-essential interactions,” review and release those currently incarcerated for marijuana convictions and waive pending probation requirements for cannabis-related cases.
Though I am unaware of any proclamations that formally call for police and prosecutors to deprioritize marijuana enforcement, it is my sense that functionally a lot of police and other law enforcement are deprioritizing all sorts of low-level criminal enforcement. For example, this local article on plummeting arrest rates notes:
In some places, police leaders have been frank about ordering officers to cease arresting for low-level crimes. In some places, prosecutors are refusing to pursue such cases. For example, Philadelphia police have been ordered to avoid arrests for crimes like drug offenses and burglaries. Instead, they are issuing warrants to be processed once the health crisis abates, according to reporting by the Associated Press.
Similarly, consider this local piece from Indiana: "The sheriff’s office is making fewer arrests to combat the spread of disease, [Jay County Sheriff] Ford said. For those charged with most non-violent misdemeanors and drug-related Level 6 felonies, court summons are being issued instead of them being arrested." And this piece from Austin, Texas with some more specifics: "Austin posted the fewest number of arrests in the month of March for at least four years.... Some of the largest declines include a 75% drop in traffic warrant arrests, to 33 arrests this March from 132 arrests in March 2019. A similar drop was also seen in the number of those arrested and charged with possession of marijuana."
I am not knocking NORML for seeking a formal call for police and prosecutors to deprioritize marijuana enforcement, but I am really interest in seeing whatever data might be available concerning just how much enforcement is currently afoot. My guess is relatively little, though still arguably a lot more than is healthy or just during these weird and uncertain times.
Eventually, but likely at least a few years from now, we will get official FBI arrest data for 2020 and we will all surely see a wide array of notable "COVID" craters. I sure hope someone might be collecting and assessing the marijuana arrest data a lot sooner.
Wednesday, April 22, 2020
This will be another exciting week as students in my Marijuana Law, Policy & Reform seminar are finishing up their presentations on research topics of their choice. The fourth presentation slated for this week will focus on how marijuana reforms intersect with gun ownership. Here is the student's description of his topic and some background readings he has provided:
My presentation will focus on the interaction between legal marijuana and gun ownership. I will begin by analyzing federal firearms laws and their practical implementation by the Bureau of Alcohol, Tobacco, and Firearms (ATF). I then look through examples of the conflicts these laws present in states which have legalized marijuana, and how federal laws currently prohibit any individual from exercising both their right to consume marijuana in legal states and their right to own a firearm under the Second Amendment. For some background reading, here are some helpful links:
Paul Barach, Why Can’t Medical Cannabis Patients Own Guns?, PotGuide (Jan. 17, 2020).
Open Letter to All Federal Firearms Licensees, Bureau of Alcohol, Tobacco, Firearms and Explosives (Sept. 21, 2011).
Aimee Green, Medical Marijuana Cardholders Can’t Be Denied Concealed Gun License Solely Because they Use Pot, Oregon Supreme Court Rules, OregonLive (May 19, 2011).
Mike Lowe, Mixed Legality of Marijuana on State, Federal Levels Leaves Gun Owners in Limbo, WGN9 (Jan. 9, 2020).
April 22, 2020 in Assembled readings on specific topics, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Tuesday, April 7, 2020
As I mentioned in this recent post, students in my Marijuana Law, Policy & Reform seminar are now "taking over" my class by making presentations on research topics of their choice. Though the COVID-19 crisis means my resilient students are doing their presenting to the class online, going online has been going pretty well so far.
As regular readers know, students provide in this space a little background on their topic and links to some relevant materials before they present. Our first presentation planned for this week will focus on marijuana-influenced driving, and here is how my student has described his topic along with background readings he has provided for classmates (and the rest of us):
Marijuana legalization proponents quite often compare marijuana use to that of alcohol, claiming that alcohol consumption is far more dangerous, especially when a vehicle is involved. Legalization dissenters, on the other hand, often make the argument that legalization would lead to rampant use and, inevitably, increases in traffic fatalities and damages as the result of people driving while stoned. The aim of my class presentation and paper is to explore three topics related to Driving Under the Influence of Marijuana, or, as I like to call it, "High Driving": (1) Marijuana’s effect on driving ability, (2) The different state approaches to testing and prosecuting High Driving, and (3) what research shows about the relationship between the different legal marijuana regimes, the prevalence of High Driving, and the resulting consequences.
For background on these three interrelated topics, please reference the resources below:
"Drug Impaired Driving/Marijuana Drug-Impaired Driving Laws" (slightly out of date)
April 7, 2020 in Assembled readings on specific topics, Business laws and regulatory issues, Criminal justice developments and reforms, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)
Friday, March 27, 2020
Advocacy groups urge ceasing of cannabis arrests and release of cannabis offenders during COVID-19 outbreak
As detailed in this press release, the "Last Prisoner Project and other organizations are urging law enforcement officials to dramatically curtail arrests for non-violent crimes, including ceasing arrests for cannabis offenses. In addition to curtailing arrests, the organizations are calling for officials to release or grant clemency to those incarcerated for cannabis offenses along with dramatically reducing the number of incarcerated non-violent prisoners, whether sentenced or un-sentenced." Here is more:
The Marijuana Policy Project, Last Prisoner Project, Law Enforcement Action Partnership, Clergy for a New Drug Policy, Doctors for Cannabis Regulation, National Cannabis Industry Association, Students for Sensible Drug Policy, and National Organization for the Reform of Marijuana Laws (NORML) have sent a letter calling for these actions to the National District Attorneys Association, National Governors Association, National Sheriffs’ Association, National Association of Chiefs of Police, National Correctional Industries Association, American Correctional Association, and AFSCME.
The letter is available at this link, and here are excerpts:
[W]e are imploring you to curtail arrests for non-violent offenses, such as marijuana possession, cultivation, and sale until the country is better able to prevent the spread of the coronavirus. Similar actions have already been taken in Pennsylvania, Ohio, and nationally by U.S. Immigrations and Customs Enforcement.
Many jurisdictions give police broad discretion to choose infractions and summonsed misdemeanors as alternatives to serious charges and arrests. In addition, officers have wide discretion to merely provide warnings for minor offenses. We encourage broad use of this flexibility in the face of the COVID-19 outbreak.
In addition to curtailing arrests, we are urging you to release cannabis offenders, along with dramatically reducing the number of incarcerated non-violent prisoners, whether sentenced or un-sentenced. By significantly reducing the number of inmates in local jails and prisons, you can ultimately reduce the risk of the coronavirus being spread amongst inmates, staff, and the community. Guards return to their families and communities after their shifts, as do prisoners upon their release. The larger the number of individuals incarcerated, the greater the likelihood and possible scope of a related outbreak. This puts prisoners, guards, and the larger community at risk as the communities grapple with this public health crisis. Significantly reducing the number of inmates is a necessary step to ensuring public health in the face of this crisis.
Many localities — including Baltimore; Suffolk County, Massachusetts; Cuyahoga County, Ohio; New Jersey; Los Angeles; and New York City — and the Federal Bureau of Prisons have already begun to release inmates incarcerated for non-violent, drug-related offenses with the understanding that infections in prisons and jails are rampant, and releasing inmates could save the lives of not only inmates but also the custodial, medical, and safety staff that serve them.
Thursday, March 26, 2020
Noticing post-reform pattern of federal marijuana prosecutions ... and realizing what it really tells us about the modern drug war
Over at my sentencing blog, I noted here that the US Sentencing Commission this week released its national yearly data on federal sentencing for Fiscal Year 2019. I am extremely pleased to see that Kyle Jaeger at Marijuana Moment has already drilled into this data in this post titled "Feds Prosecuted Even Fewer Marijuana Cases In 2019 As More States Legalize, New Data Shows." Here are excerpts:
Federal prosecutions for marijuana trafficking declined again in 2019, and drug possession cases overall saw an even more dramatic decline, according to a new report published by the U.S. Sentencing Commission on Monday.
While drug cases still represent the second most common category of crimes in the federal criminal justice system, the data indicates that the bulk of those instances are related to methamphetamine trafficking, which has steadily increased over the past decade.
But for marijuana, a different kind of trend has emerged. As more states have moved to legalize cannabis, federal prosecutions have consistently declined since 2012. To illustrate the shift, marijuana trafficking cases represented the most common drug type that was pursued in 2012, with about 7,000 cases. As of fiscal year 2019, those cases are now the second least common, with fewer than 2,000 cases.
Notably, the year of that peak, 2012, was when Colorado and Washington State became the first to legalize for recreational purposes. Though the report doesn’t attempt to explain why cannabis cases are on the decline, advocates have postulated that state-level marijuana reform has helped curb illicit trafficking by creating a regulated market for consumers to obtain the products. “Twenty-five percent of the public now live in jurisdictions where the sale of marijuana to adults is legal,” Justin Strekal, political director of NORML, told Marijuana Moment. “Of course there will be a corresponding drop in the number of illegal sales.”
Another possibility is that evolving public opinion and state policies have contributed to a shift in perspective among prosecutors, who may no longer wish to prioritize enforcing cannabis prohibition in the era of legalization. While all marijuana sales — even in states with legalization laws — remain federally prohibited, the Trump administration has in practice continued the Obama-era approach of generally not interfering with the implementation of local policies even though then-U.S. Attorney General Jeff Sessions formally rescinded a memo on the topic from the prior administration.
In any case, the new U.S. Sentencing Commission report also shows a broader decline in drug possession cases in general. In fact, the most significant reduction in crime category for 2019 was drug possession, which fell from 777 federal cases the previous year down to 563 — a 28 percent drop.... While marijuana trafficking cases decreased, the average sentence for a conviction increased by two months, from 29 to 31. Overall, drug trafficking prosecutions did increase by about 1,000 cases in 2019, though again that’s largely attributable to an increase in methamphetamine-related prosecutions.
This discussion of new federal data — particularly the notion that state-level marijuana reforms "helped curb illicit trafficking by creating a regulated market for consumers to obtain the products — elides the important reality that ALL state-legal marijuana stores are stilled engaged in "illicit trafficking" under federal law. I stress this point because there are more than 10,000 federally-illegal (and state-licensed) marijuana businesses in just the states of California and Oklahoma alone. Save for limits in a spending rider (which Prez Trump has sought to disavow), the US Department of Justice could decide to prosecute many thousands of the out-in-the-open marijuana dealers (most of whom have given states all their marijuana dealing plans in writing in order to get a state license).
I make this point because I mean to stress that the major decline in federal marijuana prosecutions over the last decade does not demonstrate that there are fewer federal marijuana crimes taking place in the US. Rather, it seems clear that there are now many more, and many more obvious, federal marijuana crimes taking place in the US, and there is also reason to fear that "fully illicit" marijuana activity (dealing that does not even comply with state laws) may not be in decline in any way. And yet we see this marked decline in federal marijuana prosecutions simply because federal prosecutors, quite soundly in my view, simply believe it is an ever-less-good use of their time to be prosecuting all the marijuana offenders who continue to grow their drug-dealing businesses in plain view.
Wednesday, March 25, 2020
At Brookings, Makada Henry-Nickie and John Hudak have this interesting new brief as part of its "Policy 2020" series titled "It is time for a Cannabis Opportunity Agenda." Here is the paper's executive summary:
The 2020 election season will be a transformative time for cannabis policy in the United States, particularly as it relates to racial and social justice. Candidates for the White House and members of Congress have put forward ideas, policy proposals, and legislation that have changed the conversation around cannabis legalization. The present-day focus on cannabis reform highlights how the War on Drugs affected targeted communities and how reform could ameliorate some of those wrongs. The national conversation on cannabis stands at a pivotal inflection point that provides policymakers and legislators with an extraordinary opportunity to establish a policy context wherein inclusive economic opportunities can thrive in tandem with responsible investments to redress longstanding harms.
When Congress works to remedy a discriminatory past or to rectify decades of institutionalized bias, it has an obligation to thoroughly consider implicit and explicit hurdles to equity. Nowhere is this deliberation more critical than in drug policy reform. For decades, the criminalization of drugs led to foreclosed opportunities for people of color who were disproportionately victimized by unequal criminal enforcement. In 2013, police officers were 3.73 times more likely to arrest people of color for cannabis possession than whites. Arrest disparities were even more egregious in some communities where Blacks were 8.3 times more likely than whites to be arrested for possession. The racist roots of the War on Drugs inflicted significant collateral damage on minority groups, saddling young men and women of color with drug convictions — often before age 30 — and setting them on a course of institutionalized disadvantage because of the crippling, collateral consequences of criminal records.
Today, amidst a thriving state-legal cannabis industry, the same people hurt most by the drug war face the greatest barriers to participating in the emerging cannabis economy. As elected officials consider how to reform the nation’s cannabis laws and rectify these serious socioeconomic and racial issues, they must erase any ambiguity about the protections, corrective actions, and inclusive opportunities intended to reverse the generation-long ills of the War on Drugs. We argue that 2020 is an opportune moment to design a comprehensive pragmatic Cannabis Opportunity Agenda: a set of policies that addresses the social harms of marijuana prohibition and seeks to rehabilitate impacted communities with a focus on equity, opportunity, and inclusion.
March 25, 2020 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Thursday, March 12, 2020
Regular readers know that I am always interested in marijuana reform impacts criminal justice systems, and that I am particularly interested in topics covered in my Federal Sentencing Reporter article, "Leveraging Marijuana Reform to Enhance Expungement Practices," regarding how marijuana reform efforts may be impacting criminal record expungement efforts. Consequently, I was terrifically excited to see this new post and resource from the terrific Collateral Consequences Resource Center authored by Deputy Director David Schlussel under the title "Legalizing marijuana and expunging records across the country."
Readers are urged to check out the full posting and materials, and this snippet from the start of the post provides a flavor of why:
As the legalization or decriminalization of marijuana has now reached a majority of the states, the expungement of criminal records has finally attained a prominent role in the marijuana reform agenda. Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in more than a dozen states. Most of these laws cover only very minor offenses involving small amounts of marijuana, and require individuals to file petitions in court to obtain relief. But a handful of states have authorized streamlined record reforms that will do away with petition requirements and cover more offenses. In the 2020 presidential race, Democratic candidates have called for wide-ranging and automatic relief for marijuana records.
Given these important developments that we expect will continue in the present legislative season, we have put together a chart providing a 50-state snapshot of:
(1) laws legalizing and decriminalizing marijuana; and
(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized.
We hope this tool will help people assess the current state of marijuana reform and work to develop more expansive, accessible, and effective record relief.
Wednesday, March 11, 2020
The title of this post is the title of this short piece just posted to SSRN authored by Heather Razook concerning a case currently pending before the Ohio Supreme Court. Here is its abstract:
In 2019, the first and third California Appellate courts both decided cases examining the same issue: whether proposition 64 decriminalized marijuana possession in state correctional institutions. People v. Perry, from the first district, held that Prop 64 did not decriminalize and People v. Raybon, from the third district, held that Prop did decriminalize marijuana possession in correctional institutions. The cases presented two exceptionally similar arguments with opposite outcomes. This paper compares those arguments and predicts an outcome for People v. Raybon that is currently up for review in the California Supreme Court.
Tuesday, March 10, 2020
Coalition urges Prez Trump to "immediately being the process of granting clemency to those serving federal time for non-violent cannabis offenses"
As reported here by Marijuana Moment, a "coalition of criminal justice reform advocates — including several Republican officials and a major basketball star — recently delivered a letter to President Trump, imploring him to grant pardons or commutations to people serving time in federal prison for non-violent marijuana offenses." Here is more:
Weldon Angelos, who himself was convicted over cannabis and handed a mandatory minimum sentence before a court cut his sentence and released him, led the effort. He’s since become a reform advocate, and he rallied support for the new letter from a wide range of politicians, activists, entertainment figures and legal experts.
“On behalf of cannabis offenders serving federal prison sentences, their loved ones, and supporters across the country, we strongly urge you to immediately being the process of granting clemency to those serving federal time for non-violent cannabis offenses,” the letter, signed by several Republican state lawmakers, a former federal prosecutor, Koch Industries and NBA champion Kevin Garnett, among others, states. “Our nation’s view of cannabis has evolved, and it is indefensible to incarcerate citizens based on the unduly harsh attitudes of past generations.”
The letter, which was delivered to a staffer at the White House late last month, notes that Trump has expressed support for states’ rights to enact their own marijuana programs and it appeals to the president’s desire to accomplish unilaterally what Congress has been unable to do. “We respectfully urge you to begin the process of identifying and granting clemency to those serving federal time for cannabis offenses, particularly those who were prosecuted in states where cannabis is now legal. We stand by to help in any way possible.”
“[W]hile there are a number of proposals being introduced in Congress to finally put an end to cannabis prohibition, they tend to lack any real avenue of relief for those who are serving time for selling cannabis,” it continues. “Given the timidity of this proposed legislation, the gridlock in Congress, and the imperative fo freedom, clemency is the right tool to fix this problem.”
Angelos, who launched the cannabis reform advocacy campaign Mission Green, told Marijuana Moment in a phone interview that while comprehensive cannabis reform is important, the “more urgent need is to at least free those who were following state law or are in states where it’s legal now.”
“I think those ones are a no-brainer and low-hanging fruits that I think the president could take care of immediately,” he said. “Then we can work with Congress to try to have broader solutions to the problems than just clemency. Clemency can only do so much.”
Among the more than 50 signatories are two individuals whose sentences Trump previously commuted, along with representatives of #cut50, the Marijuana Policy Project (MPP), Terra Tech Corp and Law Enforcement Action Partnership. Actor Danny Trejo and the New Haven police chief also signed the request.
Saturday, March 7, 2020
The title of this post is the title of this notable new research by multiple authors appearing in the American Journal of Preventive Medicine. Here is its abstract:
The objective of this study is to assess the changes in rates of juvenile cannabis criminal allegations and racial disparities in Oregon after legalization of cannabis (July 2015) for adults.
This study included all allegations for cannabis-related offenses that occurred from January 2012 to September 2018 in Oregon. Negative binomial regression models were used to examine monthly cannabis allegation rates over time, and tested differences between youth of color and white youth, adjusting for age, gender, and month the allegation occurred. Analysis was conducted in January–March 2019.
Cannabis allegation rates increased 28% among all youth and 32% among cannabis-using youth after legalization. Rates of allegations were highest for American Indian/Alaska Native and black youth. Rates for black youth were double that of whites before legalization, and this disparity decreased after legalization. For American Indian/Alaska Native youth, rates were higher than whites before legalization, and this disparity remained unchanged.
Adult cannabis legalization in Oregon was associated with increased juvenile cannabis allegations; increases are not explained by changes in underage cannabis use. Relative disparities decreased for black youth but remained unchanged for American Indian/Alaska Native youth. Changing regulations following adult cannabis legalization could have unintended negative impacts on youth.
The paper cites to this notable similar work published last year in JAMA Pediatrics titled "Youth and Adult Arrests for Cannabis Possession After Decriminalization and Legalization of Cannabis." That study, looking at arrest data through 2016, found that "arrest rates of youths significantly decreased in states that decriminalized cannabis possession for everyone but did not decrease in states that legalized adult use."
Importantly, these studies are looking at arrest data only to and through a few years after state marijuana reforms. I know Colorado experiences an interesting spike in juvenile marijuana arrests the year right after dispensaries opened, but then there was a notable decline in arrests thereafter. These are important numbers, but I think we really need to keep examining them over a greater time period before reaching any firm conclusions about enforcement patterns.