Marijuana Law, Policy & Reform

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

"Foreshadowing an Inevitable Clash: Criminal Probation, Drug Treatment Courts, and Medical Marijuana"

The title of this post is the title of this new paper authored by Michael Sousa available via SSRN. Here is its abstract:

The criminal justice system underwent two revolutionary developments over the past twenty years – the legalization of medical marijuana at the state level, which provides criminal immunity protections for qualifying patients, and the exponential rise of drug treatment courts as alternatives to incarceration.  Traditionally, offenders serving probationary sentences are generally prohibited from using drugs as one condition of probation. But courts are now increasingly confronted with challenges to probationary conditions prohibiting the use of medical marijuana in states where it has been legalized.  The trend among courts permits the medicinal use of marijuana during probationary sentences and invalidates conditions prohibiting such use for therapeutic purposes.  Drug treatment courts are a form of probation that offer intensive treatment services for offenders with substance abuse disorders. Most drug treatment courts across the country operate on an abstinence-based model.

While to date there have been no reported challenges to prohibiting the use of medical marijuana by participants in drug treatment court programs, the legal and practical issues are brimming just below the surface, and it is only a matter of time before a clash occurs between criminal immunity provisions under state medical marijuana laws and their consequential applicability in the drug treatment court landscape.  This article takes a forward-looking approach by foreshadowing this seemingly straightforward, but complicated question: how will criminal immunity provisions under state medical marijuana laws and the judicial protections afforded to offenders on regular probation be construed by appellate courts when inevitably challenged by drug treatment court participants?  This is the first scholarly article to address the knotty legal and practical issues underlying this inquiry.  The purpose of this contribution then is to provide future scholars, appellate courts, drug treatment courts, legal actors, and drug treatment court professionals with a robust foundation to draw upon in thinking about the adaptability of medical marijuana use in the drug treatment court domain.

An (aggravating) accounting of post-legalization marijuana arrest data in Virginia

I just saw this notable (and annoying) new Washington Post piece discussing arrest data for marijuana offenses in Virginia in the wake of the state's legalization reforms.  The piece is headlined "After Virginia legalized pot, majority of defendants are still Black," and here are its first two paragraphs:

A year after Virginia lawmakers legalized recreational marijuana with hopes of lessening racial disparities in enforcement, police in the state are still more likely to arrest Black people than White people for marijuana-related offenses, a Washington Post analysis found.

While marijuana arrests overall dropped in the year since Virginia became the first state in the South to legalize, Black adults accounted for nearly 60 percent of marijuana-related cases before the state’s general district and circuit courts, an analysis of marijuana-related code citations in the state’s court system concluded, despite Black people accounting for about 20 percent of the state population.

Then, only after nine more paragraphs discussing Virginia's reform, policing practices and structural enforcement dynamics, we get this further accounting (my emphasis added):

While overall marijuana-related citations dropped by about 90 percent in Virginia from 2019, those bearing the brunt of enforcement still face compounding repercussions, said Ashley Shapiro, a public defender in Richmond and criminal justice reform advocate with Justice Forward Virginia.  “Anytime there’s a criminal consequence it has foreseen and unforeseen consequences with getting a job, with applying for housing,” Shapiro said. “So there are a lot of collateral consequences, even in this time when it’s technically legalized.”

And then, starting with paragraph 21, we get some actual state-wide numbers:

The commonwealth decriminalized marijuana possession in 2020, leading to the first major dip in enforcement. In 2019, the state reported more than 26,000 marijuana-related adult arrests.  That figure dropped to more than 13,000 in 2020.  And for all of 2021 — which included the six months after legalization went into effect on July 1 — there were just over 2,000 marijuana-related arrests.

If I had any hair, this piece would lead me to want to tear it out.  For starters, the piece nowhere indicates what percentage of marijuana arrests involved Black adults before Virginia's recent legalization reform.  This ACLU accounting of pre-reform arrests in Virginia suggest that perhaps 70% or more involved Black persons.  So, even on a percentage basis, Virginia reforms seem to be helping with racial inequities in marijuana enforcement (and why the Post would not mention at least that bit of good news is a mystery).

But, much more important, the true and significant story is the 90%+ drop in overall arrests that the Post discovered.  So, if we want to focus just on the impact on Black people in Virginia, the real story is that in 2019 before reforms there were likely at least 18,000 marijuana-related arrests of Black adults in Virginia, whereas in 2021 after reforms there were only about 1,200 marijuana-related arrests of Black adults in Virginia.  Put other way, the real racial justice headline should be that well over 15,000 fewer Black people in Virginia were subject to marijuana arrests and all the collateral consequences thanks to state reforms (and that's just from a single year of data).

The Post's report here is frustrating in part because it would be foolish for anyone to believe that any and all racial disparities in enforcement would instantly evaporate with legalization reforms.  But it is even more frustrating because any and all sensible reform advocates are rightly focused on reducing overall criminalization of marijuana use in part because racial disparities have been so profound and so entrenched.  Sigh.

"The Changing Landscape of Misdemeanor Marijuana Possession Charging in Columbus, Ohio: 2011–2021"

I am pleased to be able spotlight yet another recent research paper from the Drug Enforcement and Policy Center at The Ohio State University.  This new paper, which shares the title of this post, is authored by Alex Fraga, Jana Hrdinova and Dexter Ridgway.  Here is its abstract:

In July 2019 Columbus City Council passed ordinances which significantly reduced punishment for possession of marijuana.  Shortly after, at the beginning of August 2019, Columbus City Attorney Zach Klein announced that his office would no longer prosecute misdemeanor marijuana possession cases.  Using a dataset of all misdemeanor cases from January 2011 through August 2021, we sought to review and assess changes in misdemeanor marijuana possession cases before and after the Columbus City Council reduced punishment for marijuana possession cases and City Attorney Klein’s announcement of the “no prosecution” policy.  The data reveal a significant drop in the number of misdemeanor marijuana possession cases filed in the Franklin County Municipal Court, and that the adoption of the new policies had different impacts on the various law enforcement agencies that operate within the Franklin County boundaries.  The data also suggests that the simultaneous implementation of a no-prosecute policy and adoption of lower penalties for marijuana possession might have reduced racial disparities in marijuana possession charges in Franklin County overall.  This was mostly likely driven by the near complete cessation of marijuana possession charges originating from the Columbus Division of Police.

Some federal and state marijuana headlines and stories worth noticing

Some days it seems there is now way too much marijuana news and commentary.  Despite the lack of any federal legislative reforms at all, and relatively little major change at the state level, each day seems to bring dozens of headlines and stories in the cannabis space vying for my attention.  And yet, even during busy times and lots of noise, a few headlines and stories break out to garner my attention.  Today seems to be such a day via these stories and commentaries breaking through (to me, at least):

From The Hill, "Liberals push Biden on marijuana reform ahead of midterm momentum"

From The Hill, "America needs to get real about high-potency marijuana"

From the Los Angeles Times, "The reality of legal weed in California: Huge illegal grows, violence, worker exploitation and deaths"

From Marijuana Moment, "Senate Marijuana Banking Sponsor Gives Details About Forthcoming ‘SAFE Plus’ Reform Package"

From Marijuana Moment, "Illinois Adult-Use Marijuana Sales Top $3 Billion Since Market Launched, With $1 Billion Sold So Far This Year Alone"

From the Minnesota Reformer, "Minnesota’s Black marijuana users far more likely to face arrest than white ones"

From MJBiz, "Marijuana companies lay off hundreds, retrench amid economic woes"

From Politico, "Arrests in New Jersey for small-time cannabis dealing plummet post-legalization"

Pennsylvania Gov announces mass pardon project for "select minor, non-violent marijuana criminal convictions"

As reported in this CBS News piece, "Pennsylvania Gov. Tom Wolf and Lt. Gov. John Fetterman announced a joint effort Thursday to pardon many people convicted with non-violent marijuana offenses. The large-scale project, called the Pennsylvania Marijuana Pardon Project, will allow people with select convictions to submit an application online for an official pardon from the state." Here is more:  

The website will allow Pennsylvanians to submit applications between Sept. 1, 2022 and Sept. 30, 2022. The reason for the expedited timeline is the expiration of Wolf's term, which will end when the new gubernatorial candidate is sworn into office on Jan. 17, 2023.

According to a press release on the project, Wolf has granted 2,098 pardons since taking office, 326 of which were part of an "expedited review for nonviolent marijuana-related offenses." This is in contrast to the 1,805 total pardons that were granted in the 15 years prior to Gov. Wolf's time in office, the release said.

"I have repeatedly called on our Republican-led General Assembly to support the legalization of adult-use marijuana, but they've yet to meet this call for action from myself and Pennsylvanians," Wolf said in the release. "Until they do, I am committed to doing everything in my power to support Pennsylvanians who have been adversely affected by a minor marijuana offense on their record."

Those eligible must have been convicted on either "Possession of Marijuana" or "Marijuana, Small Amount Personal Use" charges for an amount under 30 grams, CBS Pittsburgh reported. The conviction has to have taken place in the state of Pennsylvania, and while there is no age limit on the conviction, only those without additional convictions on their record are eligible to apply. The release estimates that thousands of people will be eligible.

After Pennsylvanians submit their online application, the Board of Pardons will conduct a merit review, after which those granted approval will have a public hearing were the Board will vote on which applications to send for a pardon, the release said. Those selected will be sent to Wolf for pardons after Dec. 16. If the Governor grants those pardons, those selected will still need to petition the court to get the convictions expunged from their records.

"Nobody should be turned down for a job, housing, or volunteering at your child's school because of some old, nonviolent weed charge - especially given that most of us don't even think this should be illegal," Fetterman — who is currently running against Dr. Mehmet Oz for a Senate seat — said in the release.

However, some are concerned that the criteria for the pardon is too narrow. Former prosecutor and marijuana defense attorney Patrick Nightingale told CBS Pittsburgh that he's concerned the eligible convictions do not include the use of paraphernalia, which can include grinders, rolling papers, smoking devices, and even plastic baggies....

Studies have shown that marijuana charges disproportionally impact communities of color. Black people are 3.6 times more likely than White people to be arrested on cannabis-related charges, though both used marijuana in similar quantities, according to the American Medical Association.

While more than 20 states have passed laws to expunge or seal marijuana-related records, according to the AMA, that's only a fraction of the 38 US states, two territories, and Washington, DC that have legalized medical marijuana use. Nineteen have legalized recreational use as well, according to the National Conference of State Legislatures.

This official press release discusses the program and provides this instruction and link for applicants: "Individuals can apply for an accelerated pardon through this one-time project at pa.gov/mjpardon. Once a person submits their application, they will be contacted if any necessary follow-up is needed."

"The Prevalence of Misdemeanor Marijuana Possession Records in Columbus, Ohio"

I am pleased to spotlight another recent research paper from the Drug Enforcement and Policy Center at The Ohio State University.  This new paper, which shares the title of this post, is authored by Alex Fraga and Jana Hrdinova.  Here is its abstract:

In the United States, an estimated 1 in 3 adult Americans have some sort of a criminal record.  Yet, there is a dearth of research that examines the prevalence of particular types of criminal history.  Identifying the prevalence of particular types of criminal history is necessary not only for the design of efficacious rights restoration mechanisms, but also to facilitate the review and assessment of the functioning of these mechanisms once in place. 

Efforts to legalize or decriminalize marijuana in many jurisdictions have often included discussion of the importance of providing enhanced relief mechanisms for those with records for low-level marijuana offenses.  But these discussions often lack details on how many individuals, and the composition of individuals, who might benefit from such record relief.  In this report, we estimate the prevalence of misdemeanor marijuana possession charges and conviction records among adult residents of Columbus, Ohio based on data drawn from the Franklin County Municipal Court and provide policy recommendations for implementing localized government-initiated record sealing initiatives.

How can we best answer this question: "Does marijuana legalization bring crime?"

Audacy News has this notable new piece headlined "Does marijuana legalization bring crime?  The data may surprise you."  Unfortunately, the piece does not provide a lot of new or sophisticated data on this important question, but the article still is a useful review of the debate over marijuana reform and public safety.  Here are short excerpts from the lengthy piece:

Looking back on a decade of data, did any of the dire predictions come true about weed mania? The short answer appears to be 'no.' If anything, states with legal weed have had declining rates of overall crime.

For the purposes of this study, Audacy used the numbers publicly available from the Federal Bureau of Investigation’s Crime Data Explorer website. Then we honed in on the year of legalization for all 17 states (and D.C.) and looked at the year prior and the year following legalization.

What we found: There wasn’t much change. Certainly not enough change was evident to warrant making it a key talking-point either for or against legalization.... It seems the definitive answer to this continuing question is that there isn’t one.

For a host of reasons, research on the relationships between marijuana reform and crime presents a host of challenges.  But, as highlighted in this post at my other blog, I am helping with an event that looks to explore and tackle some of these challenges.

Related posting:

Call for Papers: "Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms" 

Effective coverage of federal government's efforts to defend federal gun prohibition for medical marijuana users

The folks at Marijuana Moment now have two lengthy posts discussing the recent filings in a lawsuit challenging the federal gun prohibitions applicable to medical marijuana users.  Here are links to the stories and excerpts:

"Biden DOJ Says Medical Marijuana Patients Are Too ‘Dangerous To Trust’ In Motion To Dismiss Lawsuit On Gun Rights"

The Department of Justice asked a federal court on Monday to dismiss a lawsuit that seeks to overturn a policy blocking medical marijuana patients from buying or owning guns. The filling is partly premised on the government’s position that it would be too “dangerous to trust regular marijuana users to exercise sound judgment” with firearms.

In making its case for dismissal, DOJ also drew eyebrow-raising historical parallels to past gun bans for groups like Native Americans, Catholics, panhandlers, those who refuse to take an oath of allegiance to the government and people who shoot firearms while drunk....

At a top level, the Justice Department said the gun rights are generally reserved for “law-abiding” people. Florida might have legalized medical cannabis, but the department said that doesn’t matter as long as it remains federally prohibited.

"Florida Ag Commissioner Blasts ‘Insulting’ Biden DOJ Response To Medical Marijuana Patients’ Gun Rights Lawsuit"

The Justice Department’s characterization of medical marijuana patients as uniquely dangerous and unfit to possess firearms in its new response to a lawsuit exposed an “insulting” and antiquated perspective, Florida Agriculture Commissioner Nikki Fried told Marijuana Moment on Tuesday....

The Biden administration’s Justice Department didn’t just hold the line by denying the therapeutic benefits of marijuana, it also made the case that people who use cannabis would be too “dangerous to trust” to possess firearms. The memo’s reefer madness-era rhetoric has dismayed advocates and amplified frustrations over the president’s unfulfilled promises to enact modest cannabis reforms.

“I find it very insulting,” Fried said of the DOJ’s response. “You’re calling patients that have cancer that are using medical marijuana dangerous. You’re telling veterans who are using medical marijuana [that they’re] dangerous. I think that they missed the ball here — and it’s very disconcerting that this is the direction that they took.”

“There’s so many of us for years — for decades — who have been fighting against this stereotype of marijuana users,” the commissioner, who is running in a Democratic gubernatorial primary for a chance to challenge incumbent Gov. Ron DeSantis (R) in November, said. “To see the Department of Justice put it down in a 40-page memo defending their motion to dismiss is very disappointing.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A reminder that cannabis clemency is ultimately up to the Prez

Marijuana Moment has this lengthy new article under the headline "It’s Up To Biden To Direct Mass Clemency For Marijuana Cases, U.S. Pardon Attorney Says." Of course, in every administration and for every type of federal defendant, grants of clemency are "up to" the President. Nevertheless, this piece serves as a useful review of the state of debate over clemency for federal marijuana offenders, and here are excerpts (with lots of links from the original):

It’s up to President Joe Biden to initiate a process of granting mass clemency for people with non-violent federal cannabis convictions, the recently appointed U.S. pardon attorney told Marijuana Moment on Thursday.

As a general practice, the Justice Department’s pardon office looks as petitions for relief on an individualized basis and then makes recommendations to the president, Pardon Attorney Elizabeth Oyer said during an event hosted by the Justice Roundtable, a coalition of criminal justice reform organizations.

That said, a categorical pardon for people with federal cannabis records is still possible if the president takes action, the former public defender, who was appointed by Attorney General Merrick Garland in April, said. “Right now, the Office of the Pardon Attorney reviews every individual clemency application on an individualized basis — and that could change at the direction of the president,” Oyer said in response to a question from Marijuana Moment about the feasibility of Biden issuing mass pardons and commutations for marijuana convictions in the way Presidents Gerald Ford and Jimmy Carter did for people who avoided the draft during the Vietnam War. “Currently, what we do is we look at cases individually for the most part and not categorically,” Oyer said. But she left the door open that the president could issue a directive otherwise if he wanted to....

The pardon attorney said that when her office makes clemency recommendations, it does take into account “broad categories of policy objectives or criminal justice reform goals or racial justice objectives,” and marijuana cases represent an example of such a category because they have “some sort of cohesive common characteristics.”

“So we’re absolutely taking into consideration those categories and those policy objectives and those racial equity objectives, but we don’t look at cases in a batch without individualized review,” Oyer said. “We do look at every single case individually.”

At the event, the pardon attorney also offered advice to advocates on filing clemency petition applications and addressed the “backlog” of cases under review.

Late last year, there were signals that the administration might be moving toward clemency for certain people with federal convictions. The federal Bureau of Prisons (BOP) started asking eligible individuals to get the process started by filing out clemency applications.

Biden has received about a dozen letters from lawmakers, advocates, celebrities and people impacted by criminalization to do something about the people who remain behind federal bars over cannabis. After months of inaction, some members of Congress like Sen. Elizabeth Warren (D-MA) have even sent follow-up letters demanding a response.

Among those pushing for reform is Weldon Angelos, who received a president pardon from Trump in 2020 and has since become a key advocate for criminal justice reform who has worked with both the Trump and Biden administration of furthering relief.  “It’s up to President Biden to honor his campaign promise and instruct those involved in the clemency process to prioritize cannabis cases,” Angelos told Marijuana Moment on Thursday. “There is no other group more deserving of relief than those who are incarcerated for something that society no longer considers criminal.”...

At a House Judiciary Committee oversight hearing last month, Chairman Jerrold Nadler (D-NY) and other Democratic lawmakers stressed the need for reforming the federal clemency process, calling for applications to be streamlined to make it easier for people with non-violent federal drug convictions to get relief.

Late last year, a coalition of congressional lawmakers introduced the Fair and Independent Experts in Clemency (FIX Clemency) Act, a bill that would take clemency review away from the Justice Department and instead establish an independent board appointed by the president.

A report published by the Congressional Research Service (CRS) last year affirmed that the president has it within his power to grant mass pardons for cannabis offenses. It also said that the administration can move to federally legalize cannabis without waiting for lawmakers to act.

"United States v. Approximately 64,695 Pounds of Shark Fins: Civil Asset Forfeiture and Implications for the Cannabis Industry"

I am pleased to report that, with this posting, I am now fully caught up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  As I have said in lots of prior posts, it has been a joy to highlight great work by OSU law students and recent graduates, and the title of this post is the title of this paper authored by Alyssa Roberts who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract: 

Civil asset forfeiture, a longtime practice in U.S. law enforcement, allows the government to seize any individual property allegedly connected with a crime.  In its modern form, the stated aim has been to take down drug kingpins by forfeiting assets connected to large-scale drug rings.  However, especially in the context of cannabis, the result has been the forfeiture of billions of dollars -- much of which is never ultimately linked to criminal charges—in small increments from individual people.  Of particular concern is the starkly disproportionate effect of civil forfeiture on people of color -- most notably in Black and Latino communities.  Further, the legal landscape allows the majority of seized assets, often cash, to flow directly to police departments across the country, creating a perverse incentive for law enforcement to utilize the practice as often as possible.

This paper provides an overview of the machinations of civil forfeiture laws in the United States, as well as historical context for civil forfeiture over the past several decades.  It then discusses the interaction between cannabis and civil forfeiture, paying particular attention to industry concerns, and provides several recommendations and policy reforms.

"Getting Rid of the “Scarlet-M”: The Harms of the War on Marijuana and Why Social Equity Should Be Incorporated into Marijuana Reform"

As I continue to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center, I continue to have the chance to highlight great work by OSU law students and recent graduates.  The title of this post is the title of this paper authored by Jesse Plaksa who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract: 

When Congress criminalized marijuana as part of the Controlled Substances Act of 1970, it appointed a commission to recommend marijuana's permanent legal status; the Commission recommended it be decriminalized, recognizing that total prohibition would likely be counterproductive in light of the minimal risks to marijuana users. Because of this, marijuana never should have been criminalized in the United States.  Thus, states and the federal government should enact social equity programs along with legalization to begin fixing the problems created by criminalization.

Countless lives were ruined by marijuana arrests and convictions from direct consequences, such as imprisonment or fines, and the numerous collateral consequences that follow.  Putting aside the formal collateral consequences, the stigma from marijuana arrests or convictions also caused immense economic and other harm.  To remedy the economic harms, jurisdictions should include social equity provisions in their legislation, such as supporting those harmed by the war on marijuana in participating in the newly regulated market and using tax revenue or other funds to invest in harmed communities.  Marijuana convictions should be automatically expunged, and people incarcerated for marijuana crimes should be immediately released to remedy the carceral harm upon legalization; these remedies should apply to all marijuana convictions, whether a felony a misdemeanor.