Marijuana Law, Policy & Reform

Making the case to Prez Biden with candidates for cannabis clemency

I am pleased to see that my former student, Stephen Post, who is now part of the Last Prisoner Project, a nonprofit organization fcused on cannabis criminal justice reform, has this new USA Today opinion piece headlined "Biden promised no jail time for weed. He's running out of time to pardon cannabis convicts."   I recommend the piece in full, and here are excerpts (with links from the original):  

For most of U.S. history, presidents since George Washington have been unwavering in the use of their clemency power. They understood their actions not only as a way to remedy overly harsh sentences but also to help restore public faith in the justice system.

President Joe Biden now has a chance to use his clemency powers to secure – and, in some ways, correct ‒ his legacy on criminal justice reform.  The Biden administration has made it clear that cannabis reform, especially as a racial justice issue, is a priority and one that will energize the electorate. Nevertheless, the president has only granted 1.4% of submitted clemency petitions.

Despite positive use of his clemency powers like providing record relief to almost 13,000 people with his expanded categorical pardons for cannabis possession, President Biden has failed to release a single person in prison for cannabis via commutation....  Marylanders like Jonathan Wall, who has been incarcerated since 2020 on federal cannabis charges, can only get that type of clemency relief from the president.  

While there may be political concerns perceived to limit President Biden’s ability to grant commutations before Election Day, even then-President Donald Trump granted a few just weeks before the 2020 presidential election. In his four White House years, he granted commutations to 16 people for 27 cannabis offenses, some of whom were released from prison....

If President Biden is looking for the next batch of candidates for clemency, he has already been sent a list of deserving individuals, almost half of whom identify as Black, and whose petitions are sitting with the Office of the Pardon Attorney.

Many of these candidates have sat in prison cells for decades, or even for life, convicted of an activity that is no longer a crime, while thousands of others build business and create wealth doing the same thing.

Split Oklahoma Court of Criminal Appeals affirms dismissal of criminal charge of child neglect brought against woman who used medical marijuana when pregnant

As reported in this local press piece, "women with state medical cards who use marijuana during pregnancy can’t be prosecuted for child neglect, the Oklahoma Court of Criminal Appeals ruled Thursday."   The ruling in State v. Agular, No. 2024 OK CR 18 (Okla. Ct. Crim. App. July 18, 2024) (available here), is an interesting read, and here are a few passages from the majority opinion:

The issue in this appeal is whether an expectant mother who holds a medical marijuana card and uses the drug while pregnant has exposed her unborn child to illegal drugs constituting the crime of child neglect, which in Oklahoma includes "the failure or omission to protect a child from exposure to . . . the use, possession, sale, or manufacture of illegal drugs." 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) (emphasis added).  The Information charges Aguilar with a single felony count of child neglect by "exposing J.W.B. to controlled dangerous substances in utero, specifically Marijuana." (Emphasis added). Thus, the charging document accuses Aguilar of a crime which does not exist, i.e., child neglect by exposure to "controlled dangerous substances" as opposed to exposure to "illegal drugs[.]"  This is not a matter of semantics, and although this charging error does not determine the outcome of this appeal, the apparent confusion in terminology and definitions which led to that error is central to understanding how to properly resolve this case.

The terms "controlled dangerous substance" and "illegal drugs" are not synonymous; the former includes hundreds of prescription drugs which, like marijuana, are lawful to possess only with a prescription or other legal authorization.  The term "controlled dangerous substance" is defined in 63 O.S.Supp.2019, § 2-101(8) as any drug listed in any of the Schedules I through V of the Uniform Controlled Substances Act.  However, neither that Act nor any other provision of Oklahoma law defines the term "illegal drug", so we must ascertain the meaning of that term, and specifically, whether the marijuana use in this case is included within it so as to constitute child neglect....

We find that the most logical reading of 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) is that "illegal drugs" means those drugs whose possession or use violated the law at the time of that possession or use. Hence, an expectant mother who exposes her unborn child to illegal methamphetamine could be convicted of child neglect.  See State v. Green, 2020 OK CR 18, 474 P.3d 886.  Conversely, under that definition, an expectant mother's licensed possession and use of medical marijuana would not trigger an automatic finding of neglect for failure to protect her unborn child from exposure to illegal drugs because as to her, marijuana is not an illegal drug.

One of the two dissents includes this passage providing a different view of this matter:

The child neglect statutes were undoubtedly enacted to protect children from harm. Marijuana is still an illegal Schedule I drug except for a person who holds a medical marijuana license. In this case, the baby's exposure to Appellee's use and possession of marijuana, a Schedule I drug, is illegal because the baby has no medical marijuana license. It is not the mother's use or possession of marijuana that is criminalized by the child neglect statute, but her exposure of her unborn child to the use or possession of marijuana, an illegal drug for the child.

Student presentation exploring policing practices after marijuana reform in Ohio

Marijuana reforms do not, of course, bring an end to issues about marijuana policing.  The fifth scheduled presentation taking place in class this week will be exploring marijuana reform's impact on policing practices and here is how my student has described his topic along with some links he provided: 

My presentation aims to explain the need for more guidance for recreational users in Ohio, particularly considering the historical policing and enforcement of cannabis prior to Issue 2.  Racial disparities persist in cannabis-related arrests, with black individuals being 3.64 times more likely than their white counterparts to face arrest for cannabis possession.  These discrepancies persist even in states where cannabis has been legalized.  With cannabis now legalized in Ohio, it is imperative for individuals to understand the parameters of the law.

To address the need for more guidance, this presentation will initially delve into the training of law enforcement officers in identifying intoxicated drivers and the criteria for compelling a driver to exit their vehicle. Subsequently, we will examine the evidence required to establish probable cause for vehicle searches pre-Issue 2. After analyzing the historical policing of cannabis, we will explore the allowances and restrictions imposed by Issue 2 on recreational users.  We will then ask ourselves what constitutes probable cause in light of Issue 2's implementation.  This will involve distinguishing between clear-cut cases and ambiguous scenarios that recreational users may encounter.  Finally, we will highlight how enhanced guidance can clarify legal boundaries for recreational users, aiding them in avoiding legal entanglements.

Background reading:

• Lauren Williams & Samuel D. Hodge Jr., The Implications of Legalized Marijuana on Establishing Probable Cause for a Warrantless Search, 66 St. Louis U. L.J. (2022).  
• The Federal Law Enforcement Training Center, Searching Vehicles Without Warrants (2009).

Student presentation examines marijuana reform's impact on drug trafficking over southern border

The echoes and impacts of marijuana reform are always notable (and unpredictable), and one of my students in my Marijuana Law, Policy & Reform seminar is exploring marijuana reform's impact on broader drug trafficking over southern border. The fifth scheduled presentation in my class is described this way (along with background readings):

Marijuana, historically, was a highly-trafficked drug into the United States from both the Canadian and Mexican borders.  In the wake of legalization, both for medicinal and recreational uses, the desire for imported marijuana has declined, and other drugs have become more desirable for trafficking.  Marijuana legalization has contributed to Mexico's adaptation to alternative drug trafficking routes along the U.S.-Mexico border, and new markets have grown significantly.  With California, Arizona, and New Mexico having legalized marijuana, the need for trafficked marijuana has placed a burden on the southern border in Texas. Legalization in these states not only contributed to this migratory shift and increased seizures in Texas, but also further deepened the dent in the profits of organized crime groups in Mexico.

The shift seen in marijuana trafficking has not halted the illegal transport of drugs.  As popularity in illicit substances such as fentanyl and methamphetamine grow, southern border states are experiencing heightened volumes of the trafficking of such synthetic drugs.  The trafficking of illicit substances impacts many parts in a supply chain, from finished product to money, both in financing illicit organizations, and for the cost of protecting the southern border and the American public from illicit drugs.

Background materials:

InSight Crime, With Legalization, Marijuana Trafficking Routes Evolve Along US-Mexico Border (Dec. 13, 2022).

U.S. Customs and Border Protection, CBP: America's Front Line Against Fentanyl (March 6, 2024).

Student presentation to explore automatic and petition-based expungement in Ohio

Because I came into the marijuana space as a result of my long-standing interest in criminal justice reform, it is always exciting when a students in my Marijuana Law, Reform & Policy class decide to explore criminal law issues in their presentations and papers.  And the fourth presentation slated for this week is on a topic that is especially timely here in the Buckeye States, and here is how "The Intersection of Automatic and Petition-Based Expungement in Ohio" is described by my student (along with background readings):

Expungement is a process that allows individuals to clear their criminal records of certain offenses.  The benefit of expungement provides individuals with a fresh start by removing the barriers associated with having a past conviction.  The process of expungement varies from state to state regarding eligibility, offenses covered, and procedures.  Given the uprise in marijuana legalization, some states have implemented automatic expungement provisions to address past harms and reduce the impact of convictions.  However, Ohio’s approach to expungement remains petition-based which in turn results in low utilization among eligible individuals. 

One of the concerns in Ohio is the lack of resources needed to implement a successful automatic expungement process.  As seen in New Jersey, backlogs of expungement requests illustrate the implications and frustrations that individuals face while they wait for their records to be expunged.  Despite the benefits of expungement, such as increased employment, housing, and education – there are also concerns about potential risks to public safety.  Automatic expungement can streamline the process and increase accessibility, but this relief will need safeguards against unintended consequences.

My presentation focuses on the interplay between automatic and petition-based expungement.  As Ohio lawmakers continue the expungement conversation my first recommendation would be a dual approach that utilizes automatic relief for misdemeanors.  This process would still use the petition-based approach for felonies or cases with complex circumstances but would incorporate automatic expungement for misdemeanors.  This balance would help address public safety concerns about mistakenly expunging other non-marijuana convictions while increasing the utilization rate for eligible individuals.  I would also recommend allocating funding for expungement programs and the prosecutor’s office to increase awareness, optimize the process, and maintain the importance of record-clearing policies.

Recommended Reading:

1. Jana Hrdinova & Dexter Ridgway, Mapping Cannabis Social Equity: Understanding How Ohio Compares to Other States’ Post-Legalization Policies to Redress Past Harms, Drug Enf’t & Pol’y Ctr. (Jan. 30, 2024). 

2. Margaret Love, Jana Hrdinova & Dexter Ridgway, Marijuana Legalization and Record Clearing in 2022, Drug Enf’t & Pol’y Ctr. (Dec. 19, 2022). 

3. Dana Difilippo, New Jersey state police’s expungement backlog of 46K cases spurs lawsuit, N.J. Monitor (Oct. 23, 2023). 

4. J.J. Prescott & Sonja Starr, The Power of a Clean Slate, CATO (2022).

5. Dea Cortney & Samuel Edmunds, Understanding Expungement Under the New Cannabis Law, 80-SEP Bench & B. Minn. 25 (Sept. 2023).

Student presentation examines for federal marijuana rescheduling could impact immigration enforcement

March madness continues in my Marijuana Law, Policy & Reform seminar as students continue their "take over" of my class through presentations on the research topics of their choice. As noted many tmes before, before their presentations, students are expected to provide here some background on their topic and links to some readings or relevant materials. The second of our presentations taking place in class next week will be looking at how federal marijuana rescheduling could impact immigration enforcement. Here is how my student has described her topic along with background readings she has provided for classmates (and the rest of us):

On August 29, 2023, the Department of Health and Human Services released its recommendation to reschedule marijuana to a schedule III drug instead of its current standing as a schedule I drug.  The Department found that marijuana meets the three criteria for schedule III drugs: (1) it has less of a potential for abuse than schedule I and II drugs; (2) abuse of marijuana may lead to low or moderate physical dependence or high psychological dependence; and (3) it has a currently accepted medical use in the United States.  The Drug Enforcement Administration is currently investigating this recommendation and is expected to make a final decision of whether or not to reschedule by the November election.  While rescheduling would likely lead to greater medical access for U.S. citizens, it is unclear how it could affect immigration enforcement.

Currently, immigration law places harsh consequences on immigrants for marijuana activity.  Even in states where marijuana is decriminalized and or medically legalized, immigrants can be deported, found inadmissible, and barred from naturalization if they are caught possessing marijuana.  If marijuana is rescheduled, would immigration enforcement necessarily change?  Can immigrants still be found to have “moral turpitude” for involvement with marijuana once it is recognized the have medical legitimacy?  How may a second Biden versus Trump administration affect immigration enforcement after rescheduling?   My paper aims to discuss how the potential rescheduling may affect the disparate enforcement and consequences of marijuana criminalization on immigrants.

Some reading:

Congressional Research Service, Legal Sidebar, Legal Consequences of Rescheduling Marijuana, Jan. 2024

Marijuana Moment, DEA Tells Congress It Has ‘Final Authority’ On Marijuana, Regardless Of Health Agency’s Schedule III Recommendation, Jan 2024

Immigrant Legal Resource Center, Immigrants and Marijuana, May 2021

Washington Post, Trump vs. Biden on immigration: 12 charts comparing U.S. border security, Feb 2024

Politico, She Immigrated Legally. She Married a U.S. Citizen. But She Was Denied Citizenship for Working in Legal Cannabis, Dec 2023

Student presentation on marijuana reform's impact on Fourth Amendment doctrines

The next few weeks are going to bu busy ones in my  Marijuana Law, Policy & Reform seminar, as we have 17(!) student presentation scheduled.  That means, as often noted before, this blog will soon have 17 more student desceriptions of their topic and  some links for background reading.   The first schedule presentations taking place in class next week will be exploring marijuana reform's impact on Fourth Amendment search doctrines.  Here is how my student has described his topic along with some links he provided:

The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const. amend IV.  Warrantless police searches are therefore “per se unreasonable.” Katz v. United States, 389 U.S. 347, 357 (1967).  But that per se rule is not without its exceptions. Police can, for example, search a person’s car without a warrant if they have probable cause to do so. They can also stop and (sometimes) frisk a person based on a reasonable suspicion “that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968).  Seeing or smelling marijuana might provide police with just the level of suspicion they need to conduct a search without first obtaining a warrant. But what if marijuana is no longer an automatic indicator of criminal activity?

Courts and legislatures in states like California, Colorado, and Oregon have had to grapple with just that question.  The legalization of marijuana has unsettled Fourth Amendment law in those and other jurisdictions.  It is not immediately clear anymore what exactly police can do when they encounter marijuana.  In many instances, the answer may be nothing at all.  This presentation will outline Fourth Amendment law as it relates to marijuana.  It will then sketch how the law has evolved in states where marijuana is now perfectly legal.  Finally, it will cover possible approaches a state can take to modify search and seizure law following full legalization — including (1) do nothing, (2) leave the issue for courts to resolve, or (3) pursue change through legislation.

Additional Reading:

• Lauren Williams & Samuel D. Hodge Jr., The Implications of Legalized Marijuana on Establishing Probable Cause for a Warrantless Search, 66 St. Louis U. L.J. (2022).  

• Claire J. Rice, Failing the Sniff Test: Using Marijuana Odor to Establish Probable Cause in Illinois Post-Legalization, U. Chi. L. Rev. Online (Sept. 23, 2022), 

• Kyle Jaeger, Police Can’t Search You for Smelling Like Marijuana Under New Virginia Law, Marijuana Moment (Nov. 10, 2020).

• People v. McKnight, 446 P.3d 397 (Colo. 2019).

Student presentation examines racial disparities in cannabis enforcement and reform's impact

As recent noted, March is when students in my Marijuana Law, Policy & Reform seminar "take over" my class through presentations on the research topics of their choice.  Before their presentations, students are expected to provide here some background on their topic. The second of our presentations taking place in class this week will be exploring "Racial Disparity in Marijuana Law Enforcement and the Impact of Legalization." Here is how my student has described her topic along with some links she provided:

My presentation, Racial Disparity in Marijuana Law Enforcement and the Impact of Legalization, explores the existence and implications of racial disparity in marijuana-related arrests and convictions.  This exploration begins with a brief overview of racial disparity, including a couple statistics to portray the true difference in race-based marijuana arrests and convictions.  We will then walk through a quick history of marijuana law, highlighting the deep roots that racial biases play in the push for harsher drug laws.  We will move to the effects that marijuana arrests and convictions have on an individual before examining factors today that contribute to the racial disparities.  After that, we will move on to legalization efforts in today’s political climate and the impact that such legalization has on racial disparities.  The presentation wraps up with a brief analysis of current proposed social equity efforts aimed to correct the racial disparities, highlighting the current debates in Ohio’s proposed laws.

Backround:

1. ACLU commentary, "Marijuana Legalization Is a Racial Justice Issue" (2019)

2. ACLU report, "A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform" (2020)

3. Brookings commentary, "Marijuana’s racist history shows the need for comprehensive drug reform" (2020)

4. NORML fact sheet, "Racial Disparity In Marijuana Arrests"

"Mapping Cannabis Social Equity: Understanding How Ohio Compares to Other States' Post-Legalization Policies to Redress Past Harms"

The title of this post is the title of this terrific new report now available via SSRN and authored by Jana Hrdinova and Dexter Ridgway with the Drug Enforcement and Policy Center. This report was inspired by an on-going polict debate in Ohio after voters in the state approved in Fall 2023 a statutory ballot initiative to legalize recreational marijuana. This report should be of interest to folks outside as well as inside of Ohio because it provides a national landscape on varying social equity issues in marijuana legalization states. Here is the report's abstract:

On November 7, 2023, Ohio became the 24th state in the nation to legalize marijuana for adult recreational use. Following the lead of other states, the Ohio ballot initiative included social equity provisions designed to address past harm of marijuana criminalization by investing in disproportionately impacted communities and encouraging participation of such groups in the new legal cannabis industry. The purpose of this report is to highlight the varying strategies other states have deployed to fulfill social equity goals and to look at how Ohio’s new laws compare to others. In this report, we look at three social equity policy areas in greater detail, starting with criminal justice reform, followed by community reinvestment, and industry participation. Additionally, we also provide detailed information on the criteria states have used to determine individual and community eligibility for participating in their social equity programs. We conclude the report with recommendations for greater data collection and analyses concerning the impact of social equity efforts and a more robust assessment of best practices for social equity programs.

DEPC event: "Implementing Issue 2: Criminal Justice Reform After Marijuana Legalization"

The title of this post is provides the title of this online event being hosted by the Drug Enforcement and Policy Center (DEPC)  next week.  Here is how this panel discussion, which I am honored to moderate and takes place on January 31, 2024 from 12 noon to 1:15 p.m. ET, is described on this page (where you can register):

Criminal justice reform has been a component of marijuana reform in most states, and Ohio’s newly enacted Issue 2 includes a directive and resources for efforts to “study and fund judicial and criminal justice reform including bail, parole, sentencing reform, expungement and sealing of records, legal aid, and community policing related to marijuana.” In the wake of Issue 2’s passage, criminal justice reform advocates are renewing calls to address harms caused by the past criminalization of a substance that is no longer illegal. The nature and scope of past harms are not always clearly defined nor easily remedied, though efforts to eliminate direct or collateral consequences from past cannabis offenses are often a focal point for action.

Please join the Drug Enforcement and Policy Center and our panel of experts as they discuss how Ohio should approach criminal justice reform after marijuana legalization, what Ohio can learn from other states’ experiences, and the unique political and practical challenges Ohio may face.

Panelists:
Ohio Representative Juanita Brent, District 22
Adrian Rocha, Policy Manager, Last Prisoner Project 
Daniel Dew, Policy Director, The Adams Project
Louis Tobin, Executive Director, Ohio Prosecuting Attorneys Association

"The Social Equity Paradigm: The Quest for Justice in Cannabis Legalization"

The title of this post is the title of this new article authored by William Garriott and Jose Garcia-Fuerte now available via SSRN. Here is its abstract:

Today, many states have adopted a commercial-based approach to cannabis legalization which reflects the market for alcohol to govern the production, distribution, and consumption of the cannabis plant and its derivatives.  As a result, legalization has prioritized economic benefits and structures over justice concerns that would dismantle the old infrastructure of prohibition. This continues to shape the way legalization is unfolding across the United States.

One impact of this market-based approach is the push for social equity within the cannabis industry.  Though poor people and people of color have disproportionately suffered under prohibition, it is those least likely to have been targeted — wealthy and/or white people — that have disproportionately benefited from legalization.

To change this dynamic, social equity advocated have argued for a suite of policies that we term “the social equity paradigm.”  These policies are multifaceted and take various forms, but focus on three priorities: (1) increasing access to the industry, (2) addressing criminal records, and (3) re-investing cannabis tax revenues into disproportionately impacted communities.  All three priorities reflect the shortcomings of the market-based legalization model. They also reflect the principle of equity, which in this context simply means that those disproportionately harmed by prohibition should receive disproportionate benefit under legalization.

This article surveys the social equity paradigm across the country, and discusses the many legal, political, and social challenges confronting the paradigm that may require a shift in the approach to social equity.  The article provides recommendations for how the principles of the social equity paradigm can be sustained while avoiding the challenges that seek to undermine it.

"Prosecutor-Initiated Record Relief in Ohio: A Survey of Prosecutorial Plans to Seal and Expunge Low-Level Controlled Substance Offenses"

The title of this post is the title of this new paper available via SSRN from multiple authors including Jana Hrdinova, Dexter Ridgway and Peter Leasure. Here it is abstract:

Ohio Senate Bill 288 (134th G.A.) created Ohio Revised Code Section (2953.39) to allow prosecutors to initiate sealing or expungement actions on behalf of defendants previously convicted of low-level controlled substance offenses.  After passage of this new law, the Drug Enforcement and Policy Center at The Ohio State University surveyed all elected or appointed prosecutors in Ohio to gauge their office's interest and willingness to initiate record sealing or expungement applications on behalf of people who have been previously convicted of a low-level controlled substance offense.  Overall, about 12% of respondents stated that they were willing to pursue prosecutor-initiated sealing for low-level controlled substance offenses.  For those who reported that they were unlikely to pursue prosecutor-initiated sealing, common explanations for not doing so included the lack of staffing resources, the lack of financial resources, the lack of data, the belief it is not the responsibility of prosecutors, and the sufficiency of the defendant-initiated system.

"Collisions and cannabis: Measuring the effect of recreational marijuana legalization on traffic crashes in Washington State"

The title of this post is the title of this notable new research authored by Annie Voy and just published in the journal Traffic Injury Prevention.  Here is its abstract:

Objective

Washington State was among the first states in the US to legalize recreational consumption and retail sales of marijuana.  Recreational use of cannabis was legalized December 6, 2012, following the passage of Initiative 502 30 days prior.  Roughly 19 months later the first retail cannabis stores opened their doors for public sales (“commercialization”).  I measure the impact of cannabis legalization and commercialization on traffic collisions in Washington State.

Methods

With county-level vehicle crash data from the Washington State Department of Transportation collected monthly, I utilize an interrupted time-series framework with Poisson estimation to compare traffic collisions with recreational retail cannabis sales revenue from 2011 (three years pre-commercialization) through 2017 (three years post-commercialization).  First, I measure the shift in collisions brought about by Washington’s 2012 cannabis legalization.  Then, I compare retail cannabis sales — a measure of commercialization — to traffic collisions based on severity of injury (fatal, severe injury, minor injury, non-injury, and all).

Results

After controlling for confounding factors, evidence suggests that recreational cannabis legalization led to fewer fatal and serious injury collisions.  Retail cannabis sales generally correlate with more traffic collisions, particularly for less severe (minor injury) crashes.  These findings are robust to the inclusion of additional control variables pertaining to county-level cannabis usage and driving behavior while intoxicated.

Conclusions

Cannabis legalization led to fewer fatal, serious, and minor injury collisions.  Commercialization (cannabis sales) correlated with an increase in less severe crashes.  Although cannabis use generally increased in Washington State following legalization/commercialization, survey data suggest that driving behavior while under the influence of cannabis did not change significantly over the post-commercialization period.  Future research should focus on measuring the dose-dependent impact of cannabis consumption on traffic collisions.  This should include recognition of the importance of cannabis dosing, timing, and route of consumption.  Lastly, the dangers of poly-drug driving — particularly cannabis and alcohol — are well established and should be high priority for further research.

NACDL event this week on "Marijuana Justice as Social Justice"

I was pleased to see that NACDL’s Cannabis Justice Initiative has planned this free online event titled "Marijuana Justice as Social Justice."  Here are the basics of the event from the program page:

"Marijuana Justice as Social Justice" will be a conversation between The Honorable Randall Woodfin, Mayor of Birmingham, Alabama, and Jason D. Williamson, Attorney, Racial Justice Advocate, and Executive Director of the Center on Race, Inequality, and the Law. The event will be moderated by Eric J. Davis, the Felony Trial Division Chief of the Harris County Public Defender's Office in Texas.

While people across the country enjoy regulated and taxed cannabis products, thousands of people, mostly from black and brown communities, continue to suffer in prison for conduct that has been legalized in 21 states and counting. Please join us for a conversation concerning the fight for marijuana justice for those most affected by unjust marijuana criminalization, and two advocates' fight to change these laws and right the wrongs of racially discriminatory marijuana arrests, convictions, and sentences. 

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

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

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

Panelists:

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

Moderator:

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

Student presentation exploring past marijuana convictions and sentences amid reform efforts

I am always excited by the wide range of diverse topics that students in my Marijuana Law, Policy & Reform seminar focus upon for their research and class presentations.  But, because I was brought to this topic through my long-standing interest in criminal justice reform, I get extra excited when a student digs into criminal law stories.  And the second presentation slated for this week is in this space, and the topic is described by my student this way (along with background readings):

Efforts to change marijuana law at both the state and federal level are never-ending.  With so much excitement around the prospect of new laws, the passing of new laws, and the possibility of new business, one group appears to be left behind more often than not: the people who have already been affected by the criminalization of marijuana and are currently serving time in prison.

At the federal level while marijuana is not legal, Biden pardoned roughly 6,500 people convicted of simple possession of marijuana in October of 2022.  This step showed so much promise of change, but what wasn’t accounted for was how simple possession charges can affect the sentences of other people within the federal sentence.  Maybe someone is convicted of heroin possession, but they have two previous marijuana possession charges — their criminal history increases, increasing their sentence.  How do we account for these disparities? One person is pardoned, no longer serving time for marijuana possession while another gets months tacked onto their sentence for that same offense.

At the same time, simple possession marijuana offenders are not the only group facing disparities.  People serving longer sentences in federal prison for trafficking marijuana also face disparities in sentence lengths due to mechanisms like compassionate release.  A system set up to help people — and it does — does not reach every person equally in prison.  Depending on your judge, you may have an order granting your motion for compassionate release because the judge understands the marijuana landscape has changed over the last 20 years.  However, on the other hand, you may receive an order from your judge denying your motion for compassionate release because to them trafficking marijuana is still a crime at the federal level, despite what states are doing.  How do you remedy one person receiving relief because of changes in marijuana law while another person being denied compassionate release because changes in marijuana law does not warrant a sentence change?

Maybe there is no good answer — but one thing is for sure, this group of people, feeling the impacts of antiquated marijuana law, cannot be left behind.

Background reading:

US Sentencing Commission, "Weighing the Impact of Simple Possession of Marijuana" (January 2023) 

From CNBC, "Biden pardons thousands of people convicted of marijuana possession, orders review of federal pot laws" (October 2022)

 Congressional Research Service, "Recent Developments in Marijuana Law" (December 2022)

Student presentation exploring legality of gun possession and marijuana use

Students in my Marijuana Law, Policy & Reform seminar often focus on cutting-edge issues in their class presentations on the research topics of their choice.  The second presentation slated for this week could not possibly be more cutting edge, as my student will be discussing gun possession and marijuana use.  Here is how she has described her topic along with background readings she has provided for classmates (and the rest of us):

                Although individual states have not necessarily legislated that possessing a gun is unlawful for state compliant marijuana users, cannabis’s federal illegality seems to produce this result.  The process for obtaining a gun – regardless of what state the individual resides in – requires the individual to fill out the Federal Bureau of Alcohol, Tobacco, and Firearms’ Form 4473. Form 4473 question 21g states:

"Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?  Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreation purposes in the state where you reside."

                Consequently, individuals that are fully in compliance with the marijuana laws in their home state are being stripped of their Second Amendment right, regardless of if the plant is being used for medicinal or adult use purposes.  Therefore, marijuana users who wish to possess a gun have three options: stop using marijuana entirely, stop using state compliant marijuana and instead obtain it from an illicit source, or lie.  Although ATF agents and prosecutors report that due to limited resources, they are not inclined to prioritize the nonviolent crime of lying on a form over more serious charges, lying on the form and obtaining a gun while being a marijuana user remains a federal felony offense. 

                In the wake of the 2022 Bruen holding, litigation on this matter seems to (so far) sway in favor of gun rights activists.  But there remain many unanswered questions in this area.  The implications of either a legitimization of state-legal marijuana use on the federal level (while the plant remains on Schedule I), or of an acknowledgement that the gun control/background check process can be changed, could be massive.

Links to Background Reading:

From the Washington Post, "Lying to ATF on gun-purchase form yields few prosecutions, data shows"

From the US Attorney's Office in the Western District of Oklahoma, "Federal Prosecutors Aggressively Pursuing Those Who Lie in Connection With Firearm Transactions"

From the Reason Foundation, "Medical Marijuana Patients Are Being Denied Gun Rights"

From US Congressman Alex Mooney, "There Are Two Sides Of The Fence, Use Marijuana And Give Up Gun Ownership Or Give Up Marijuana And Be A Gun Owner."

From CNN, "Gun form liars may go on to commit gun crimes, internal ATF research suggests"

Student presentation exploring "stoned drivers" and how marijuana impairs ability to drive

After a spring break week, we are back to student presentations in my Marijuana Law, Policy & Reform seminar.  The first presentation will be a carry-over on marijuana and mental health from an earlier class, and then the next presentation scheduled for this coming week will take a close look at "stoned drivers" and how marijuana can impair an individual's ability to drive.  Here is how my student has described her topic and some background reading:

As recreational marijuana is legalized in more states, the question of how cannabis causes impairment becomes more of a public safety concern. This is especially true in regard to "stoned drivers" and how marijuana can impair an individual's ability to drive. Alcohol can be tested through one's blood alcohol content/level (BAC), however, there still has yet to be a consistent way to test a cannabis users impairment while driving. This presentation will explore the impact of cannabis on driving and how it compares to the impact of alcohol. Here are some links for background reading: 

Institute of Living, "Marijuana vs. Alcohol: What's The Difference in Impaired Driving?"

New York Times, "Is Driving High as Dangerous as Driving Drunk?"

Notable new talk about SAFE Banking Act and HOPE Act getting added to "must-pass" defense bill

New reporting by Axios and Politico suggest that US Senators on both sides of the aisle are working to get notable marijjuana reform measures included in this year's (must-pass) National Defense Authorization Act.  The Politico piece, headlined "Senators push for SAFE Banking in defense bill," starts this way:

A landmark bill that would make it easier for banks and other financial institutions to service the cannabis industry could finally be poised for passage.  The SAFE Banking Act could be included in the National Defense Authorization Act that Congress is expected to take up next week.

Republican senators had a “productive” meeting about the legislation on Thursday with Majority Leader Chuck Schumer, Sen. Steve Daines (R-Mont.) told POLITICO. Sen. Sherrod Brown (D-Ohio), chair of the Senate Banking Committee, said he "hopes" it is in the NDAA.

The final decision is likely to be made on Monday, when the House Rules Committee meets to tee up the compromise version of the NDAA for a vote on the House floor as early as Tuesday. A final version of the defense bill was expected to be filed Friday, but has been delayed as House and Senate leaders iron out last-minute issues around what outside bills should be attached.

The Axios piece adds these details:

The targeted legislation is the result of the pairing of two bills —Secure and Fair Enforcement (SAFE) Banking Act and the Harnessing Opportunities by Pursuing Expungement (HOPE) Act—that would attract both conservatives and progressives across Congress.

The latest changes to the bill ensure that the legislation does not unintentionally make it harder for law enforcement to prosecute other crimes involving other drugs or money laundering.

Schumer and the bipartisan group plan to attach this legislation to a must-pass year-end bill like the annual National Defense Authorization Act.

Schumer and Sen. Jeff Merkley have been working with Republicans for months, including Sens. Steve Daines, Rand Paul, and Dan Sullivan.

"President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

Though I have already flagged this event at my other blog, I wanted to be sure to highlight here this exciting webinar scheduled for next month (December 13 starting at 12noon), which is organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project.  Here is a bit of the backstory and the panel lineup:

On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses.  In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants.  While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.

Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.

Panelists:

Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice

JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project

Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project

Moderator:

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