Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Sunday, October 17, 2021

"Smoke and Fears: The Effects of Marijuana Prohibition on Crime"

The title of this post is the title of this notable new working paper authored by Scott Callahan, David M. Bruner and Chris Giguere. Here is its abstract:

U.S. drug policy presumes prohibition reduces crime.  Recently states have enacted medical marijuana laws creating a natural experiment to test this hypothesis but is impeded by severe measurement error with available data.  We develop a novel imputation procedure to reduce measurement error bias and estimate significant reductions in violent and property crime rates, with heterogeneous effects across and within states and types of crime, contradicting drug prohibition policy.  We demonstrate uncorrected measurement error or assuming homogeneous policy effects leads to underestimation of crime reduction from ending marijuana prohibition.

And here is a key paragraph from the paper's introduction:

Our results indicate that MMLs result in significant reductions in both violent and property crime rates, with larger effects in Mexican border states.  While these results for violent crime rates are consistent with previously reported evidence (Gavrilova et al., 2017), we are the first paper to report such an effect on property crime as well.  Moreover, the estimated effects of MMLs on property crime rates are substantially larger, which is not surprising given property crimes are more prevalent.  We also find novel evidence consistent with our hypothesis that MMLs reduce violent crime rates more in urban counties compared to rural counties, contrary to previous estimates (Chu and Townsend, 2019).  We attribute this result to greater conflict between producers in urban counties under prohibition.  Overall, our results are consistent with the need for market participants to create de facto property rights under prohibition, often through the use of violence.  Our results are also consistent with prohibition causing a diversion of scarce policing resources, which when reallocated have the greatest impact on more pervasive types of crime and in locations where crime rates are higher.  These findings demonstrate both the importance of accounting for heterogeneous policy effects on crime and the necessity to correct for measurement error in crime data when conducting policy analysis.

October 17, 2021 in Criminal justice developments and reforms, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Thursday, August 19, 2021

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

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

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

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

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

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

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

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

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

Prior related post:

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

Sunday, August 15, 2021

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

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

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

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

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

Wednesday, July 21, 2021

Notable new report on the "Impacts of Marijuana Legalization in Colorado"

As discussed in this local news piece, this week brought this big new report with lots of new data on some of the impacts of marijuana reform in Colorado.  Here are excerpts from the press account:

More than seven years since Colorado became the first state to allow cannabis to be sold at stores for recreational use, pot arrests are down, marijuana-impaired driving cases are up and school expulsions are both up and down.

Those numbers — and a whole lot more — come from a new report released Monday by the state Department of Public Safety, which is required by law to study the impacts of cannabis legalization. In a new 180-page report, a statistical analyst from the department’s Division of Criminal Justice painstakingly goes through the numbers to provide the most comprehensive summary available about what has happened since voters in 2012 approved a state constitutional amendment legalizing possession and sales of small amounts marijuana. (Recreational cannabis stores opened during a New Year’s Day snowstorm in 2014.)

But the analyst, a longtime tracker of marijuana data named Jack Reed, is also hesitant about drawing conclusions from this mountain of information. He cited inconsistencies in how data was collected and other limitations that make it difficult to draw hard conclusions. “The lack of pre-commercialization data, the decreasing social stigma, and challenges to law enforcement combine to make it difficult to translate these preliminary findings into definitive statements of outcomes,” he wrote.

Here’s what Reed found: Marijuana-related arrests are down....

Major marijuana-related crime has been on a rollercoaster....

Marijuana DUIs are up....

Adults are using cannabis more — especially older adults....

Hospitalizations have leveled off....

It’s not clear if kids are using cannabis more....

School expulsions were way up, then way down....

Tax revenue has grown....

July 21, 2021 in Criminal justice developments and reforms, Recreational Marijuana Data and Research | Permalink | Comments (0)

Sunday, June 6, 2021

"Illegal drug market responses to state recreational cannabis laws"

The title of this post is the title of this notable research report recently published in the journal Addiction authored by Angélica Meinhofer and Adrian Rubli. Here is its abstract:

Background and Aims

In the United States, 15 states and the District of Columbia have implemented recreational cannabis laws (RCLs) legalizing recreational cannabis use. We aimed to estimate the association between RCLs and street prices, potency, quality and law enforcement seizures of illegal cannabis, methamphetamine, cocaine, heroin, oxycodone,hydrocodone, morphine, amphetamine and alprazolam.

Design

We pooled crowd sourced data from 2010–19 Price of Weed and 2010–19 Street Rx, and administrative data from the 2006–19 System to Retrieve Information from DrugEvidence (STRIDE) and the 2007–19 National Forensic Laboratory Information System (NFLIS). We employed a difference-in-differences design that exploited the staggered implementation of RCLs to compare changes in outcomes between RCL and non-RCL states.

Setting and cases

Eleven RCL and 40 non-RCL US states.

Measures

The primary outcome was the natural log of prices per gram, overall and by self-reported quality. The primary policy was an indicator of RCL implementation, dened using effective dates.Findings The street price of cannabis decreased by 9.2%[β = 0.092; 95% confidence interval (CI) = 0.15–, –0.03] in RCL states after RCL implementation, with largest declines among low-quality purchases (β = 0.195; 95% CI = –0.282, –0.108). Price declines were accompanied by a 93%(β = 0.93; 95% CI = –1.51, –0.36) reduction in law enforcement seizures of cannabis in RCL states. Among illegal opioids, including heroin, oxycodone and hydrocodone, street prices increased and law enforcement seizures decreased in RCLstates.

Conclusions

Recreational cannabis laws in US states appear to be associated with illegal drug market responses in those states, including reductions in the street price of cannabis.  Changes in the street prices of illegal opioids analyzed may suggest that in states with recreational cannabis laws the markets for other illegal drugs are not independent of legal cannabis market regulation.

June 6, 2021 in Criminal justice developments and reforms, Recreational Marijuana Data and Research | Permalink | Comments (0)

Sunday, May 16, 2021

"Five Decades of Marijuana Decriminalization"

Marijuana-Decriminalization_project-headerThe title of the title for this great new resource page from the the Drug Enforcement and Policy Center (which I help direct).  The page provides data and discussion concerning decades of state and local marijuana decriminalization experiences.  The subtitle of the page highlights a key theme of this new resource page: "Exploring the limited and disparate impact of fragmented reforms."  I highly recommend folks check out all the data and original visuals on this page.  Here is some of the page's introductory text:

The topic of drug decriminalization has gained considerable attention in the United States after Oregon voted in November 2020 to decriminalize all drugs in that state.  While we consider the possible impacts of broader drug decriminalization efforts, it is useful to look back at the five decades of marijuana decriminalization for lessons on effects and implementation.

In 1972, the US National Commission on Marihuana and Drug Abuse, known as the Shafer Commission, issued a report advocating a “social control policy seeking to discourage marihuana use” but asserting that criminal law was “too harsh a tool to apply to personal possession even in efforts to discourage use.”  In 1973, Oregon became the first state to implement the recommendations of the Shafer Commission by decriminalizing marijuana statewide. Ten states followed suit in the next five years: Alaska, California, Colorado, Maine and Ohio in 1975; Minnesota in 1976; Mississippi, New York and North Carolina in 1977; and Nebraska in 1978. In 1977, President Jimmy Carter even urged Congress to consider marijuana decriminalization.  The decriminalization movement stalled throughout the 80’s and 90’s with President Reagan’s focus on the war on drugs, but the 2000’s brought a sustained attention to the issue with a wave of decriminalization efforts, medical-use and adult-use cannabis legalizations across 35 states, and a rapidly changing public opinion....

By our count, at the end of 2010, roughly only one-third of Americans lived in a jurisdiction with full or partial decriminalization laws.  By April 2021, over 75% of people in the United States lived in a jurisdiction that has passed some form of decriminalization or legalization....

These numbers can mask the fact that not all decriminalization initiatives are created equal and that some forms of decriminalization do not ensure significant reduction in criminal justice encounters for marijuana users.  Despite the growth in the number of states that have fully legalized cannabis for all forms of adult use (17 states, the District of Colombia and three U.S. territories), residents of 14 states (29% of the U.S. population) continue to be barred from using cannabis lawfully even for medical purposes and many others are subjected to a patchwork of decriminalization statutes, which can differ from a city to city if full decriminalization is not adopted on statewide basis.

May 16, 2021 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, May 4, 2021

Effective coverage of marijuana expungement efforts and work still to do

Marijuana-record-relief-map.4.29.21-1024x890The PBS News Hour has this great new and lengthy piece about marijuana expungement laws and practices under the headline "As more states legalize marijuana, people with drug convictions want their records cleared."  Regular readers know I have long been invested in these issues  (see my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices"), and I am especially pleased that folks at the Drug Enforcement and Policy Center worked with folks at the Collateral Consequences Resource Center to create the national map found in the PBS piece and reprinted here.  I recommend the PBS piece in full, and here are some excerpts:

Sixteen states and the District of Columbia have legalized recreational marijuana over the last nine years, and industry advocates have applauded measures to de-stigmatize the substance and bring major revenue to state coffers.  But for people with lingering drug convictions like Michael, the news has raised more questions about what legalization means for their criminal records.

Currently in Virginia, “you have to go through all these hoops and loopholes to actually have an expungement,” Michael said.  This may soon change.  Like many other states that recently legalized marijuana, Virginia lawmakers included provisions in their legislation that over several years will allow for the automatic expungement of certain marijuana convictions, meaning people like Michael may one day see their records cleared without having to petition to do so.

Such measures signal a broader effort by lawmakers to right the wrongs of the war on drugs, a decades-long campaign by federal and state governments to crack down on use of illegal drugs that also helped incarceration balloon in the U.S.  States have begun to legalize substances like marijuana that have disproportionately imprisoned Black and brown Americans over the last 50 years, affecting their access to employment, education and housing.  Racial justice advocates argue that state legislatures should not consider legalization bills unless they include proposals to help people easily expunge their records, as well as eliminate some of the barriers to entry Americans of color face when looking for work in the cannabis industry.

But just as states did not legalize recreational marijuana overnight, the lingering effects of the war on drugs are not likely to quickly disappear.  Though Virginia Gov. Ralph Northam pushed to make cannabis legal in the state by the beginning of July, for example, many expungement provisions in the legalization and record-sealing laws are not set to take full effect until 2025 as state police and courts need time to update their computer systems and processes.

As a result, many Americans with marijuana charges on their records are currently living in a grey area, cautiously optimistic about the wave of legalization taking place but unclear what it means for their future.  “[Politicians] are making strides toward being really liberal and legalizing [weed], and that’s cool, but at the same time I served 10 years for this,” said Harry Kelso, another Virginia resident who served time in prison for possession and distribution.  “So at some point, I feel like I deserve some reparations.”...

Pauline Quirion, director of the Criminal Offender Record Information (CORI) & Re-Entry Project at Greater Boston Legal Services and an adviser to Mass CultivatED program participants, said she thinks it’s a good sign when she works with clients seeking to seal or expunge their records because it means they’re focused on securing a career.  She said that the adverse effects of a criminal record are evident from their experiences with the job search process. “Some clients have applied for like 200 jobs and they’re rejected, but they keep applying,” she said.  “So you have to have a lot of stamina to find employment.”...

David Schlussel, an expert on marijuana expungement with the Collateral Consequences Resource Center, said recent efforts to pass laws to expunge marijuana records in states such as Virginia, New Mexico, and Arizona signal a greater awareness of the harmful impact cannabis continues to have on communities targeted by the criminal justice system.  He said that when states first began legalizing recreational marijuana 10 years ago, they rarely considered legislation that would help people clear their records.  Campaign messaging to promote the new laws in states such as Colorado and Washington was usually driven by consumerism and tax benefits rather than racial justice.  Schlussel said this began to change as lawmakers began to emphasize the necessity of racial justice in marijuana reform in their messages to voters, which in turn gave it more political capital.

More than 20 states have passed reforms related to marijuana expungement, Schlussel said, with outcomes ranging from automatic pardons for a broad range of offenses to the possibility of expungement for a narrower set of charges.  But once these laws are on the books, states could very well face challenges getting a variety of marijuana charges expunged, he added.  While states like New Jersey, New York, and New Mexico recently passed bills to automatically expunge a wide range of marijuana offenses from people’s records, others have pursued approaches that are resource-intensive and still include a number of hurdles for people who want their offenses cleared.

In Arizona, where recreational marijuana recently became legal, expungement is possible but not automatic.  Julie Gunnigle, who ran unsuccessfully for Maricopa County attorney in the fall, said clearing Arizonans’ records is dependent on the support of county attorneys and the state’s attorney general, making it subject to the whims of politicians who may not necessarily be inclined to clear a broad swath of charges.  Although Gunnigle praised the “first-of-its-kind” expungement law that recently passed along with legalization, she added that “it is now going to be incumbent on leaders to find the folks who are eligible or those who are eligible to come forward and file these petitions if they want to get justice.”

May 4, 2021 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, Who decides | Permalink | Comments (0)

Wednesday, March 17, 2021

"Inequitable Marijuana Criminalization, COVID-19, and Socioeconomic Disparities: The Case for Community Reinvestment in New York"

PSP_DPA-report-cover-231x300The title of this post is the title of this notable new report released today by the Drug Policy Alliance and the Public Science Project at the Graduate Center, CUNY.  Here are parts of the 30-page report's executive summary:

The prevalence of substantial racial disparities in marijuana arrests is well established.  In 2018, New York City Comptroller Stringer released a report documenting how disparities in marijuana policing fall along both racial and socioeconomic lines.  This research expands upon that work in two important ways:

1. We explore whether the same disparities occurred in other areas of New York State, including Syracuse, New Rochelle, and Buffalo.

2. We additionally analyzed social vulnerability and COVID-19 rates to assess whether the communities who have been most impacted by marijuana policing are also disproportionally impacted by COVID-19.

New York City, New Rochelle, Syracuse, and Buffalo were selected to present a holistic picture of marijuana prohibition, racial inequities in arrests, and health disparities across the state. The four case studies are all in the top seven largest cities in New York State and were chosen to represent different regions within the state, as well as economic, educational, and racial diversity.

In each city we identified the zip codes with the highest and lowest rates of marijuana-related arrests and compared averages between the two groups on a number of indicators.  For ease of reading, we use the terms “high marijuana arrest zip codes” and “low marijuana arrest zip codes” to refer to these groupings.  However, there were two exceptions to this procedure.  First, due to New Rochelle’s small size, there were not enough zip codes to generate averages, so the data presented reflects the single zip codes with the highest and lowest arrest rate. Second, as the NYPD data on marijuana arrests is organized by precinct rather than zip code, we analyzed the data for New York City by precinct. 

Arrests and Race

The analysis suggests that similar disparities in marijuana policing are occurring in New York City, Syracuse, New Rochelle, and Buffalo.  In all four cities, marijuana arrests are disproportionately concentrated in communities of color.  In Syracuse, which reports the home zip code of those arrested, rather than where the arrest occurred, marijuana arrests disproportionately affect those who live in communities of color.  People of color are consistently over-represented in marijuana arrests, and areas with the highest marijuana arrest rates also tend to have proportionally larger populations of color.

Social Vulnerability Index

The Social Vulnerability Index (SVI) is a measure created by the Centers for Disease Control that uses 15 social factors (e.g. poverty, lack of vehicle access, crowded housing) in order to assess the ability of a community to prevent suffering and loss in the wake of disaster and disease.  As it is difficult to assess the numerous impacts of COVID-19 on a community, we compared SVI scores for the high and low marijuana arrest zip codes in each city.  High marijuana arrest areas consistently ranked higher on SVI scores than low marijuana arrest zip codes, indicating increased vulnerability during public health emergencies.

Median Household Income, Poverty, and SNAP

Across all four cities, the high marijuana arrest zip codes demonstrate more socioeconomic deprivation compared to the low marijuana arrest zip codes.  In each city, the average poverty rate was notably higher among the high marijuana arrest zip codes. High marijuana arrest zip codes consistently have nearly half the median household income of the low marijuana arrest zip codes (except for New Rochelle, where the disparity is even greater).  Across all four cities, the average percentage of families receiving SNAP (Supplemental Nutrition Assistance Program) in high marijuana arrest zip codes was at least 3 times greater than in low marijuana arrest zip codes.

Homeownership, and Median Home Value

Socioeconomic disparities were also evident in housing.  In every city, we observed that high marijuana arrest zip codes had both lower rates of home ownerships and lower median home values than low marijuana arrest zip codes.

COVID-19 Rates and Health Insurance

Across all cities, we found higher average COVID-19 positivity rates among the high marijuana arrest zip codes compared to the low marijuana arrest zip codes.  However, it should be noted that we were unable to find data for three zip codes in Syracuse due to the lack of standardized reporting of COVID-19 data across New York State. Even so, the connection between racial and social inequities and COVID-19 has been thoroughly documented elsewhere.  We also found that, on average, a slightly larger percentage of people under 65 are uninsured among the high marijuana arrest areas than the low marijuana arrest zip codes.

Conclusion

Despite regional differences, New York City, New Rochelle, Syracuse, and Buffalo demonstrate similar trends.  People of color are over-represented in marijuana arrests, and high marijuana arrest zip codes are characterized by larger communities of color and greater socioeconomic deprivation.  There is also evidence to suggest that high marijuana arrest zip codes are more severely impacted by COVID-19.

March 17, 2021 in Criminal justice developments and reforms, Race, Gender and Class Issues | Permalink | Comments (0)

Monday, March 8, 2021

"The Problem of Driving Under the Influence of Drugs: The Views of Four Former 'Drug Czars'"

The title of this post is the title of a recent Heritage event that can now be heard in podcast form here.   Here is how the event is described:

People driving under the influence of drugs has been a major problem in America for decades, with alcohol being the most common drug used.  The recent opioid-abuse epidemic, along with the decision by a large number of states to legalize cannabis for medical or recreational use, has made the problem of driving under the influence of drugs even more urgent.  To save lives, the issue must be understood and addressed.

Join us for a discussion with four former White House “Drug Czars” on the importance of this problem, potential new challenges as more states legalize cannabis and more individuals engage in polydrug use, and how the federal government and states should respond.

March 8, 2021 in Business laws and regulatory issues, Criminal justice developments and reforms, History of Marijuana Laws in the United States | Permalink | Comments (1)

Saturday, February 20, 2021

"Goodbye Marijuana Schedule I -- Welcome to A Post-Legalization World"

The title of this post is the title of this recent article authored by Melanie Reid which was recently posted to SSRN.  Here is its abstract:

Marijuana has been a Schedule I controlled substance under the Controlled Substances Act (CSA) for fifty years. However, the tide has turned, thirty-three states and Washington D.C. have legalized marijuana for either recreational and/or medical use, and it is likely that marijuana will eventually be removed as a Schedule I drug and become legal at the federal level as well.  During this transition phase, it is important to reflect on how the criminalization of marijuana under the CSA has impacted the U.S. criminal justice system and the criminal procedure case law that followed.

This article will examine the impact criminalizing marijuana has had on criminal procedure and how criminalizing possession, manufacturing, and distributing marijuana provided law enforcement with ever-expanding tools to detain, search, and arrest criminal defendants.  Rarely has a controlled substance had such an impact on investigative tools — from trespassing to search for marijuana plants in fields, surveilling marijuana grows in the area, smelling (by humans) and sniffing (by dogs) for weed at traffic stops, to expanding the probable cause to arrest a particular defendant, marijuana has had quite an impact on the expansion of criminal procedure during the War on Drugs. 

There are several lessons to be learned from this failed 50-plus year criminalization experiment, and those failures and successes should be identified in order to make better scheduling choices in the future.  After such reflections, this article will examine what life will be like in a readily available, post-legalization marijuana world.  While simple possession of marijuana may become legal, the federal government will still have its hand in its regulation and taxation. Law enforcement’s ability to arrest, search, and forfeit drug-related assets may be limited but not to as great an extent as one might think.  Due to heavy regulation, law enforcement will still be using its tools to identify marijuana-related crime, such as violations of driving while intoxicated, open container laws, public intoxication, minor in possession laws, possession of large amounts of marijuana, etc.  The laws and law enforcement activity in states where marijuana has already been decriminalized serve as a guidepost for a post-legalization world.  Living in a post-legalization world will require some changes for the law enforcement community and will cause federal agents to shift from criminal investigative work to regulatory action.

February 20, 2021 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (3)

Monday, February 15, 2021

On Presidents Day, coalition calls for Prez Biden to issue "a general pardon to all former federal, non-violent cannabis offenders in the U.S."

DownloadVia email, I learned of this notable new letter sent from coalition of public policy organizations, business groups and criminal justice reform advocates calling upon Prez Biden to use his clemency power on behalf of certain marijuana offenders.  Here is an extended excerpt from the letter:

Thank you for taking a strong leadership position in support of criminal justice reform in the United States.  The protests and civil unrest that dominated the news following the murder of George Floyd revealed historic levels of mistrust and eagerness for bold new leadership.  Our system is in urgent need of reform, and we appreciate the goals outlined by your administration.

President Biden, we urge you to clearly demonstrate your commitment to criminal justice reform by immediately issuing a general pardon to all former federal, non-violent cannabis offenders in the U.S.  In addition, all those who are federally incarcerated on non-violent, cannabis-only offenses for activity now legal under state laws should be pardoned and their related sentences commuted.  Cannabis prohibition ruins lives, wastes resources, and is opposed by a large majority of Americans.  Two out of every three states in the U.S. have abandoned the federal government’s blanket prohibition and now provide safe and regulated access to cannabis for adults and/or those with qualifying medical conditions.  And Illinois Gov. J.B. Pritzker has showcased the important role of clemency in achieving justice and equity with cannabis reforms through his recent work pardoning or expunging nearly half a million prior cannabis convictions.

Criminal histories related to cannabis can be particularly harmful for individuals, despite the change in laws in many states.  Convictions can seriously limit job opportunities, housing, and educational options.  Long after a person has gone through the legal system, the baggage of the war on marijuana continues to undermine that person’s life and diminish their prospects.  It is past time for the harm to stop.

In November 2019, during a Democratic Primary Debate, you stated: “I think we should decriminalize marijuana, period.  And I think everyone – anyone who has a record – should be let out of jail, their records expunged, be completely zeroed out.”  You now are in a position to do just that through a categorical pardon grant.  Such grants are hardly unprecedented.  Presidents from both political parties have taken such action when circumstances warranted it.  In 1974, President Ford signed a proclamation granting conditional pardons to the Selective Service Act violators who did not leave the United States.  In 1977, President Carter issued categorical pardons to all Selective Service Act violators as a way to put the war and divisions it caused in the past.

While the war on cannabis impacts individuals of all races, a disproportionate number who enter the criminal justice system are people of color.  On your first day in office, you signed an executive order rightly stating that, “Our Nation deserves an ambitious whole-of-government equity agenda that matches the scale of the opportunities and challenges that we face.”  Today, the long-term harm of cannabis prohibition in communities of color throughout the country is profound. As we look to solutions to provide healing, the dangerous policing tactics that were developed to execute the war on marijuana, including no-knock warrants and other aggressive tactics, shock the nation and have led us to historic levels of mistrust. When a large majority of Americans no longer believe cannabis should be illegal, aggressive enforcement tactics quickly lose support.  A general pardon of all former and current federal non-violent cannabis offenders would be the kind of grand, ambitious, and impactful action that would effectively signal to marginalized communities that their suffering is seen and that the government seeks to remedy their harms.

February 15, 2021 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (2)

Monday, February 8, 2021

"Toward A Rational Policy For Dealing With Marijuana Impairment – Moving Beyond 'He Looked Buzzed To Me, Your Honor'"

The title of this post is the title of this new paper recently posted to SSRN and authored by William McNichol.  Here is its abstract:

This paper examines how marijuana impairment is currently proven, especially in states where marijuana has been legalized under state law.  Much of the currently used proofs, and in particular testimony of purported Drug Recognition Experts, and some legislatively imposed standards are scientifically unsound and their use should be discontinued or severely limited.  It is recommended that development of a valid biochemical proxy for marijuana impairment should be a priority funding item in states where marijuana is legalized. 

February 8, 2021 in Criminal justice developments and reforms | Permalink | Comments (0)

Thursday, January 21, 2021

"Ensuring Marijuana Reform Is Effective Criminal Justice Reform"

The title of this article is the title of this new article that I wrote along with Alex Kreit that is now available via SSRN.  Here is its abstract:

In less than a decade, marijuana legalization has gone from unthinkable to seemingly unstoppable.  This essay — written for a special issue on improving Arizona’s criminal justice system — discusses how Arizona should best advance marijuana legalization so that it can significantly improve Arizona’s criminal justice system.  Now that Arizona has legalized marijuana via ballot initiative, we do not wade too deeply into the arguments for and against legalization or the criminal justice impact inherent in the repeal of prohibition (such as reductions in marijuana arrests and sentences).  Instead, we focus on steps that Arizona policymakers and advocates who are interested in improving the criminal justice system can take to ensure that legalization best advances this goal.  First, we set the stage in Part I with a brief history of marijuana prohibition, its role in criminal enforcement today, and the movement to enact state legalization laws.  In Part II, we turn our attention to Arizona, beginning with a description of marijuana reform efforts in Arizona and key facets of the Smart and Safe Arizona Act.  We then provide recommendations for policymakers and other concerned parties about how to ensure modern marijuana reforms in Arizona (and elsewhere) can and should help build a reform infrastructure that could not only ensure record relief to redress past marijuana convictions but also address broader criminal justice issues that historically intersect with marijuana prohibition.

January 21, 2021 in Criminal justice developments and reforms, Initiative reforms in states, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, December 31, 2020

"Illinois Governor Announces Half A Million Marijuana Expungements And Pardons"

The title of this post is the headline of this new Marijuana Moment piece, which I thought must include a typo because how could there be "half a million" arrests or convictions to eliminate.  But then I remembered how many people bear scars from marijuana prohibition, and sp here is the story:

The governor of Illinois on Thursday announced more than 500,000 expungements and pardons for people with low-level marijuana offenses on their records.  The massive clemency and records clearing sweep comes about one year after the state’s legal cannabis market launched.  Prior to its implementation, Gov. J.B. Pritzker (D) granted an earlier round of more than 11,000 pardons for marijuana-related convictions.

The new effort saw slightly fewer gubernatorial pardons (9,219), but an additional 492,129 expungements for people convicted over non-felony cannabis offenses.  The Illinois State Police helped facilitate the record clearing process.

Illinois’s marijuana legalization law includes restorative justice components that require the state to proactively expunge certain cannabis convictions — but this development puts Illinois four years ahead of schedule.  “Statewide, Illinoisans hold hundreds of thousands low-level cannabis-related records, a burden disproportionately shouldered by communities of color,” Pritzker said in a press release.  “We will never be able to fully remedy the depth of that damage.  But we can govern with the courage to admit the mistakes of our past — and the decency to set a better path forward.”

“I applaud the Prisoner Review Board, the Illinois State Police, and our partners across the state for their extraordinary efforts that allowed these pardons and expungements to become a reality,” Pritzker, who alluded to the additional pardons in October, added.

Toi Hutchinson, a senior cannabis advisor to the governor, said she is “heartened by the progress we have made towards undoing the harms dealt by the failed war on drugs.”

“We are one year into what will be an ongoing effort to correct historic wrongdoings,” she said.  “The administration remains committed to working with legislators to address any challenges to equity and on building an industry that re-invests in our state’s communities.”  According to the press release, “the expungement process has been completed at the state level,” but “county clerks are still processing expungements at the local level.”

The Marijuana Moment article concludes by noting some other states that have been working to ensure marijuana reform serves as a form of criminal justice reform:

New Jersey Gov. Phil Murphy (D) is being pressed by civil rights groups to systematically issue pardons for people with marijuana convictions to supplement the state’s voter-approved move to legalize cannabis.

Colorado Gov. Jared Polis (D) used a recently enacted law to grant nearly 3,000 pardons for people convicted of possession one ounce of less of marijuana.

In June, more than 15,000 people who were convicted for low-level marijuana possession in Nevada were automatically pardoned under a resolution from the governor and Board of Pardons Commissioners.

Washington State Gov. Jay Inslee (D) has also issued pardons for cannabis offenses.

December 31, 2020 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Who decides | Permalink | Comments (2)

Monday, December 28, 2020

Update on the state of marijuana expungements in the Prairie State

Download (16)The Chicago Tribune has this new extended article details the status of expungement efforts in Illinois, and its full headline captures its themes: "Pot legalization was to bring expungements to many with records in Illinois. Numbers so far are low, but more are expected to be on the way."  Here are excerpts:

Marijuana legalization in Illinois came with grand plans for wiping clean many criminal records involving cannabis.  That aspect of the law was so important that on the eve of legalization on Jan. 1, 2020, Gov. J.B. Pritzker pardoned more than 11,000 people of low-level marijuana convictions.

Yet more than 700,000 cases could qualify for expungement, a process in which police and court records of arrests and convictions are cleared.  The process is crucial to giving people with such records a better chance at getting a job, an education and a place to live.

Now, almost one year after legalization took effect, few of those cannabis cases have been cleared. But officials say more expungements are on the way.  Under the legalization legislation, Illinois State Police were tasked with identifying by Jan. 1, 2021, those cases that occurred since 2013 that could be expunged automatically.  That amounts to some 47,000 cases, Toi Hutchinson, Gov. J.B. Pritzker’s senior adviser on cannabis, said.  With the deadline just days away, state police said they would make an announcement about those expungements soon.

In Cook County, State’s Attorney Kim Foxx worked with a nonprofit tech company called Code for America to identify and clear 2,200 cases early this year.  But during the COVID shutdown of courts, that process was delayed for months. Now, prosecutors there plan to expunge another 11,000 cases early in 2021.

McHenry County State’s Attorney Patrick Kenneally also went to court to get about 1,900 cases expunged early in 2020. But in general, other counties have not taken such initiative.  Some are still waiting for state police to identify which cases are eligible. Lake County, for instance, the state’s attorney’s office knew of only two requests to vacate and expunge records, both of which were granted.

As a result, many people are still paying the price for having small amounts of marijuana that customers now buy routinely at pot shops.  On the production side, licensed cannabis companies are churning out tons of the plant, amounts that previously could have earned life sentences in prison.

Now, after months of delays in the process, in part because of the pandemic, advocates are trying to reboot parts of the state’s plan to clear convictions.  While only misdemeanor and the lowest level felony cases are eligible for automatic expungement, there remain an estimated 71,000 cases involving larger amounts of cannabis that don’t qualify for automatic expungement but are eligible to be cleared in court, advocates say.  Yet very few individuals have come forward seeking to clear their records, advocates say.  They blame lack of familiarity with the process by the public, courts and court clerks.

In response, a program called New Leaf is seeking to get people with pot convictions to come forward and get their slates wiped clean.  New Leaf brings together 20 nonprofit organizations to help people get through the sometimes difficult process, which can take months or years.  The program is being led by Illinois Legal Aid Online, which has step-by-step instructions for people to take part.  The effort is being funded by taxpayers through the nonprofit Illinois Equal Justice Foundation.

December 28, 2020 in Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Sunday, December 27, 2020

Notable NORML accounting of marijuana reform highlights in 2020

I just came across this recent posting titled "2020 NORML Victories," which serves as a kind of year-in-review  of marijuana reform highlights in 2020.  Folks should click through to see the particulars as discussed by NORML, but here are heading flagging big developments in this post:

Historic: House Of Representatives Passes Legislation Repealing Federal Marijuana Prohibition

Cannabis Retailers Are Acknowledged To Be “Essential Businesses”

2020 Election Was A Clean Sweep For Legalization Ballot Measures

Virginia Decriminalizes Marijuana Possession, Calls For Legalization

Tens Of Thousands Have Their Criminal Marijuana Records Expunged

Vermont Legalizes Retail Marijuana Access

I now see that NORML has this additional new accounting of the marijuana reform year that was under the headline "2020 Year in Review: NORML’s Top Ten Events in Marijuana Policy." Here are the listed events:

#1: Advocates Run the Table on Election Day

#2: House of Representatives Votes to Repeal Federal Marijuana Prohibition

#3: Tens of Thousands Have Their Marijuana Records Expunged

#4: Sales of Retail Cannabis Products Reach Historic Highs

#5: No Uptick in Youth Marijuana Use Following Legalization

#6: Vermont Lawmakers Legalize Retail Marijuana Access

#7: More Seniors Report Using Cannabis to Improve Their Quality of Life

8: Cannabis Retailers Designated as “Essential Businesses”

#9: Studies Show Off-The-Job Cannabis Use No Threat to Workplace Safety

#10: Virginia Ceases Arrests for Marijuana Possession

December 27, 2020 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, December 10, 2020

"America’s longest serving nonviolent cannabis prisoner," Richard DeLisi, released from Florida prison

Download (15)As reported in this AP piece, headlined "Man serving 90-year sentence for selling marijuana released from prison," a ridiculous sentence for a marijuana offense came to a partial conclusion this week.  Here are the basics:

While serving a 90-year prison sentence for selling marijuana, Richard DeLisi's wife died, as did his 23-year-old son and both his parents.  His adult daughter was in a horrific car accident and suffered a paralyzing stroke as a result.  He never met two granddaughters -- a lifetime of missed memories.

Yet, 71-year-old DeLisi walked out of a Florida prison Tuesday morning grateful and unresentful as he hugged his tearful family.  After serving 31 years, he said he's just eager to restore the lost time. DeLisi was believed to be the longest-serving nonviolent cannabis prisoner, according to the The Last Prisoner Project which championed his release.

DeLisi also finally met his 11-year-old and 1-year-old granddaughters for the first time this week....

DeLisi was sentenced to 90 years for marijuana trafficking in 1989 at the age of 40 even though the typical sentence was only 12 to 17 years.  He believes he was targeted with the lengthy sentence because the judge mistakenly thought he was part of organized crime because he was an Italian from New York.  DeLisi said he had opportunities, but never had any desire for that life.  He prefers not to dwell on lost memories and time he'll never get back. He's not angry, and instead takes every opportunity to express gratitude and hope....

When the then-40-year-old hipster with the thick Italian accent first entered prison, he was illiterate, but taught himself how to read and write.  Now, he wants "to make the best of every bit of my time" fighting for the release of other inmates through his organization FreeDeLisi.com....

Chiara Juster, a former Florida prosecutor who handled the case pro bono for the The Last Prisoner Project, criticized DeLisi's lengthy sentence as "a sick indictment of our nation."...

Rick DeLisi said his family fell apart after his father's sentence. His mother never recovered. His brother overdosed and died, his sister was in a terrible car accident.  Rick fled at the country at 17 to get away from the pain.  "I can't believe they did this to my father. I can't believe they did this to my family," the grieving son said, describing the reunion like opening up an old, painful wound.

A bit more about this ugly case can be found via this Last Prisoner Project page titled "America’s Longest Serving Nonviolent Cannabis Prisoner Richard DeLisi to be Released After 32 Years Behind Bars."

Interestingly, as detailed in this CNN piece, the Florida Department of Corrections has represented that DeLisi's release was a routine matter:

Florida Department of Corrections press secretary Kayla McLaughlin told CNN that the decision to move up DeLisi's release date was not "related to any action by an outside party."

DeLisi's release date was initially moved up from summer 2022 to May 2021 after an error was discovered on his record, McLaughlin said, which restored 390 days of provisional release credits he was owed upon the start of his sentence in 1989.

Good behavior also earned him "gain time," or a reduction in his sentence. DeLisi had previously forfeited 120 days of "gain time" due to disciplinary infractions. But because DeLisi's last disciplinary report was from July 2005 and because he was 120 days from his new release date of May 2021, he was eligible to have his "gain time" restored, which moved up his release date, McLaughlin said.

December 10, 2020 in Criminal justice developments and reforms | Permalink | Comments (3)

Thursday, November 26, 2020

Might Prez Trump soon give federal marijuana prisoners something to be thankful for?

This new Marijuana Moment piece, headlined "Republican Lawmakers And Celebrities Push Trump To Free Marijuana Prisoners Before Leaving Office," prompts the question in the title of this post as it reports on a notable effort to get Prez Trump to use his clemency pen on behalf of a notable group of federal prisoners.  Here are the details:

A group of celebrities, Republican officials and civil rights advocates sent a letter to President Trump on Wednesday, urging him to pardon or commute the sentences of people in federal prison for nonviolent federal marijuana offenses. The letter, which organizers said they adapted from an earlier request after discussing the previous proposal with the office of Trump senior adviser and son-in-law Jared Kushner, states that the signatories “strongly believe that justice necessitates the exercise of executive clemency in these cases.”

Unlike the last version, the new letter comes with an attachment — at the request of Kushner’s office, advocates said — of a specific list of 24 people who are currently behind bars for cannabis offenses, including several who are serving life sentences.

Weldon Angelos, who himself was convicted over cannabis and handed a mandatory minimum sentence before a court cut his sentence and released him, personally delivered the first version of the letter to the White House in March. He told Marijuana Moment that Kushner’s office then reached out to his organization, Mission Green, to request that, in addition to redelivering the request, advocates include a list of incarcerated people who they feel are especially entitled to presidentially granted relief.

Those two dozen currently incarcerated individuals include people like Luke Scarmazzo, who was sentenced to 22 years in federal prison for operating a state-legal medical cannabis business in California. These inmates shouldn’t have to wait for Congress to get around to enacting federal policy change, and the president should use executive action to pardon them, the letter states.

“You have expressed support for the States’ right to implement their own cannabis laws, especially for medicinal purposes,” the signatories, including former NBA star Kevin Garnett, wrote. “And while 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.”...

Among the more than 50 signatories of the new letter is Alice Johnson, who appeared at the Republican National Convention and whose story was featured in Trump campaign ads after her drug sentence was commuted by the president.

Republican state lawmakers from Kansas, Maine and Missouri also signed on, as did a former U.S. attorney, actor Danny Trejo, the New Haven, Missouri police chief and former New Mexico governor and presidential candidate Gary Johnson. They were joined by representatives of groups like #cut50, Marijuana Policy Project and Law Enforcement Action Partnership....

It’s not clear how Trump will react to the request for a round of cannabis-specific clemency. His reelection campaign worked to frame him as the criminal justice reform candidate, but he hasn’t proactively championed marijuana reform, has made several anti-legalization administration hires and issued signing statements stipulating that he reserves the right to ignore long-standing congressional riders that prohibit the Justice Department from using its funds to interfere with state-legal medical cannabis programs. Also, despite his pledged support for medical marijuana and states’ rights, the president evidently holds some negative views toward cannabis consumption, as evidenced in a 2018 recording in which he said that using it makes people “lose IQ points.”

Prior related post:

November 26, 2020 in Criminal justice developments and reforms, Who decides | Permalink | Comments (0)

Tuesday, November 3, 2020

Marijuana and other drug reforms have a big night across the nation

Though it may be a bit too early to declare all the ballot initiatives winners, as of this writing just before the end of Election Day 2020, it seems as though every marijuana reform initiative and all the other drug reform initiatives on ballots today are going to pass.  Specifically, as now reported on this Marijuana Moment tracking page, here is what I am seeing:

Full marijuana legalization:

Arizona: 60% in favor

Montana: 60% in favor

New Jersey:  67% in favor

South Dakota: 53% in favor

 

Medical marijuana legalization:

Mississippi: 69% in favor

South Dakota: 69% in favor

 

Psychedelic decriminalization/legalization:

Oregon: 55% in favor

Washington DC: 77% in favor

 

Drug Decriminalization:

Oregon: 59 % in favor

November 3, 2020 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Initiative reforms in states, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, October 30, 2020

"Weed, Dogs & Traffic Stops"

The title of this post is the title of this new article recently posted to SSRN and authored by Alex Carroll.  Here is its abstract:

The Supreme Court has long characterized a dog sniff as a binary investigative technique.  For nearly four decades, the Court has held that a dog sniff conducted during a routine traffic stop is not a Fourth Amendment “search” because it reveals only the location of an illegal substance.  Marijuana, however, is now legal in thirty-four states. Accordingly, this Article closely reexamines the Fourth Amendment’s treatment of dog sniffs.

In doing so, it makes three overarching arguments.  First, a dog sniff conducted during a routine traffic stop is a nonbinary type of investigative technique in states that have legalized recreational or medicinal marijuana.  Second, a dog sniff conducted during a routine traffic stop is a Fourth Amendment “search” in those same states.  Third, law enforcement agencies operating in those states must retrain or replace their drug-detection dogs.

Moving forward, the Article further demonstrates, law enforcement agencies will encounter significant challenges associated with retraining or replacing their drug-detection dogs.  It therefore concludes by providing law enforcement agencies with ways to mitigate those challenges.  At its core, this Article offers the judiciary and law enforcement profession with a constitutional path forward.

October 30, 2020 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)