Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, January 18, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 18, 2022 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Monday, January 3, 2022

"Cannabis decriminalization and racial disparity in arrests for cannabis possession"

The title of this post is the title of this encouraging new research in the January 2022 issue of the journal Social Science & Medicine.  This piece is authored by Christian Gunadi and Yuyan Shi, and here is its abstract:

Rationale

Minorities often bear the brunt of unequal enforcement of drug laws. In the U.S., Blacks have been disproportionately more likely to be arrested for cannabis possession than Whites despite a similar rate of cannabis use. Decriminalizing cannabis has been argued as a way to reduce racial disparity in cannabis possession arrests. To date, however, the empirical evidence to support this argument is almost non-existent.

Objectives

To examine whether cannabis decriminalization was associated with reduced racial disparity in arrests for cannabis possession between Blacks and Whites in the U.S.

Methods

Using FBI Uniform Crime Report data from 37 U.S. states, cannabis possession arrest rates were calculated separately for Blacks and Whites from 2000 to 2019.  A difference-in-differences framework was used to estimate the association between cannabis decriminalization and racial disparity in cannabis possession arrest rates (Blacks/Whites ratio) among adults and youths.

Results

Cannabis possession arrest rates declined over 70% among adults and over 40% among youths after the implementation of cannabis decriminalization in 11 states. Among adults, decriminalization was associated with a roughly 17% decrease in racial disparity in arrest rates between Blacks and Whites.  Among youths, arrest rates declined among both Blacks and Whites but there was no evidence for a change in racial disparity between Blacks and Whites following decriminalization.

Conclusions

Cannabis decriminalization was associated with substantially lower cannabis possession arrest rates among both adults and youths and among both Blacks and Whites.  It reduced racial disparity between Blacks and Whites among adults but not youths.  These findings suggested that cannabis decriminalization had its intended consequence of reducing arrests and may have potential to reduce racial disparity in arrests at least among adults.

January 3, 2022 in Criminal justice developments and reforms, Initiative reforms in states, Race, Gender and Class Issues, Recreational Marijuana Data and Research | Permalink | Comments (0)

Saturday, December 11, 2021

Yet another example of mass past marijuana convictions not addressed by petition-based record relief effort

Given my long-standing interest in marijuana record relief efforts – see, e.g., my early article, "Leveraging Marijuana Reform to Enhance Expungement Practices" and a later piece, "Ensuring Marijuana Reform Is Effective Criminal Justice Reform" –  I was intrigued but not really surprised by this recent AP article out of North Dakota.   The full headline of the article highlights its themes: "North Dakotans Seeking Pot Pardons Slow to a 'Dwindle': Only a few of the tens of thousands of people who may be eligible have taken advantage of a policy change that lets those with low-level marijuana convictions in North Dakota petition have their records wiped clean."  Here are more of the details (with a little of my emphasis added):

Records show only 51 of the 70 people who applied have been granted pardons in the two years the policy has been in place.  Another three people, who were recommended for pardons last month by an advisory board, are awaiting approval by the governor.

Republican Gov. Doug Burgum and Attorney General Wayne Stenehjem both support the change, which brings North Dakota in line with some other states and cities that have been trying to fix problems that such past convictions have caused for people trying to find jobs and housing.  Stenehjem estimated as many as 175,000 marijuana convictions over several decades could be eligible for pardons under the policy....

North Dakota already had allowed people to apply for pardons to remove marijuana-related offenses from their records, but the process was burdensome.  While the new policy doesn’t go as far as other states that automatically dismiss or pardon convictions, it does involve an application process.

People applying for pardons must complete a 1½-page form that law enforcement reviews before placing a case on the pardon board’s agenda.  It costs nothing to apply.

Burgum's spokesman said the number of applicants seeking to have their pot convictions erased has “slowed to a dwindle.”  Only eight applications were received last month in the fourth round of the summary pardons.

I find this story especially interesting because North Dakota is one of the our smallest states (by population, only around 600,000 for decades until recently climbing to nearly 800,000) and also one of our whitest states (90-95% white with Native Americans as the largest minority group).  And yet still, the state AG estimates "as many as 175,000 marijuana convictions over several decades," and these are apparently convictions, not just arrests.  These data highlight how marijuana prohibition has contributed to mass criminalization everywhere and for everyone in the US, not just in urban areas and not just for minority populations.

Even more discouraging, of course, is that over a few years only a few dozen of the tens of thousands with these convictions have the knowledge and ability to fill out only a "1½-page form" to potentially secure a pardon.  Concerns about low "uptake" for petition-based expungement systems often rightly stress how complicated and costly it can be for a person to figure out whether certain records are eligible for  relief and/or to complete the application process (which can have a number of formal and informal costs).  But here there seem to be few complications and minimal costs, and yet still apparently less than perhaps .05% of those potentially eligible have sought relief.  Sigh.

December 11, 2021 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Friday, December 3, 2021

Ohio GOP and NY Dem representatives introduce federal HOPE Act to support state cannabis expungement efforts and study collateral consequences

I was pleased to see this news via Marijuana Moment about a new federal bill to support state marijuana expungement efforts.  Here are the basics:

As congressional lawmakers work to advance federal marijuana legalization, a bipartisan duo on Thursday filed a bill that would incentivize states and local governments to expunge cannabis records in their jurisdictions.  Reps. Dave Joyce (R-OH) and Alexandria Ocasio-Cortez (D-NY) are sponsoring the legislation, titled the Harnessing Opportunities by Pursuing Expungement (HOPE) Act.

It would encourage states to provide relief to people with non-violent marijuana convictions through federal grants — the State Expungement Opportunity Grant Program, run through the Department of Justice — that would help cover the administrative costs of identifying and clearing eligible cases.  The bill proposes to appropriate $2 million in funding to support the program for each fiscal year starting in 2023 and ending in 2032.

Specifically, the grants could be used by states to purchase technology used to facilitate expungements at scale, automate the relief process, fund legal clinics to help people get their records cleared and support “innovative partnerships” to provide mass relief....

Under the bill, state governors and local governments “shall submit to the attorney general an application at such time, in such manner, and containing such information as the attorney general may reasonably require” to qualify for the grants.  Further, the legislation would require the attorney general to carry out a study on the impacts of cannabis convictions on individuals, as well as the financial costs for states that incarcerate people over non-violent marijuana offenses.

Officials in jurisdictions that receive the grants would be required to “publish on a publicly accessible website information about the availability and process of expunging convictions for cannabis offenses, including information for individuals living in a different jurisdiction who were convicted of a cannabis offense in that jurisdiction.” They would also need to “submit to the attorney general a report describing the uses of such funds, and how many convictions for cannabis offenses have been expunged using such funds.”

Longtime readers know that expungement policies and practices have long been of great interest to me, going back to my work years ago on an big early article, "Leveraging Marijuana Reform to Enhance Expungement Practices." and more recently through work done in part by the Drug Enforcement and Policy Center (see here and here).  So I am very excited to see this issue getting notable attention via this notable bill by two notable members of Congress.

That said, I must comment that the particulars of this short bill are a bit disappointing.  For starters, allocating only $2 million per year to incentivize states to ramp up expungement seems woefully insufficient.  From the state's perspective, a little money is better than nothing, but having a range of mandates tied to a very small revenue stream likely ensures this bill would have at most modest impact.  Second, the issues that the US Attorney General is tasked to study in this bill are only a small portion of the issues raised by marijuana criminalization, and the bill seems only to look at the impact of past marijuana offenses that have been reformed rather than all marijuana prohibitions.

In the end, I presume this bill is highly unlikely to become law anytime soon, so the particulars may matter less than the useful discussion of the broader issues raised.  Still, I hope that any future legislative proposals in this space are even bolder than this first notable effort.

December 3, 2021 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Tuesday, November 23, 2021

"An Overview of Decriminalization Efforts in Regard to Psychedelic Plants in the United States, 2019-2020"

The title of this post is the title of this paper recently posted to SSRN and authored by Aaron Roberts, a student at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this paper's abstract:  

This paper examines the recent developments made in psychedelic-related drug policy in the United States.  The paper gives an overview of the decriminalization efforts made at the state and local levels.  The paper also looks at the historical, cultural, political, and public health factors that have shaped psychedelic policy throughout American history and into the current day.  Lastly, the paper shares some concerns about discrimination and unequal access present in psychedelic-assisted psychotherapy.

November 23, 2021 in Criminal justice developments and reforms, Initiative reforms in states, Medical community perspectives | Permalink | Comments (0)

"Oregon Narcotics Decriminalization: Example or Outcast?"

The title of this post is the title of this new paper recently posted to SSRN and authored by Blake Gerstner, a recent graduate of The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

In November 2020, the people of the State of Oregon spoke loudly and clearly by passing Ballot Measure 110, decriminalizing possession of small amounts of narcotics across the board, from cocaine to heroin to methamphetamine.  As a state with a recent, large increase in overdose deaths, Oregon now stands at the forefront of the U.S. decriminalization effort, setting an example for, or becoming an outcast among, its sister states. While only time will tell the long-term implications of this pioneering initiative, such legislation has long been sought by doctors, care specialists, and legal professionals across the United States as a compassion-driven step toward reversing the consequences of a lost war on drugs.  By focusing on ending the cycle of addiction among narcotic users, rather than penalizing and ostracizing those trapped in said cycle, its supporters have high hopes for greatly reducing drug addiction and overdose deaths, ending the mass incarceration of narcotics-addicted individuals, and terminating the illicit drug trade by refocusing attention on those who perpetuate the narcotics black market. From the criminal justice system, to mental health and addiction support, and to broader sociological and political understandings, the effects of Oregon’s initiative will almost certainly be vast and far-reaching, likely changing forever how the U.S. government, its institutions, and its citizens view drug use and addiction.

We can begin to grasp the amplitude of Ballot Measure 110 by looking to Oregon’s specific drug problems and how the measure could solve them.  The purpose of this article is to provide a bird’s-eye view of Oregon’s new model by exploring two interrelated topics.  First, I provide an in-depth explanation of the Measure’s intent and purpose, analyzing its language, original objective, and subsequent developments to comprehend exactly what Oregonians voted for and what can be expected.  Second, I offer a brief presentation of one Oregon-specific problem, methamphetamine addiction, and how the initiative could change meth use, enforcement, and criminalization.  In doing so, I hope to expound upon potential future implications of the Oregon measure as a whole, with the hope of imparting some idea of decriminalization’s future in the Beaver State.

November 23, 2021 in Criminal justice developments and reforms, Initiative reforms in states | Permalink | Comments (0)

Thursday, November 18, 2021

"How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition"

The title of this post is the title of this new essay that I had the pleasure of co-authoring with my colleague Alex Fraga. The forthcoming publication in now up on SSRN, and here is part of its abstract:

Modern state medical marijuana laws date back to 1996, when Californians approved the first statewide medical marijuana legalization law via ballot measure; Colorado and Washington voters passed the first ballot initiatives legalizing marijuana for adult use in 2012.  By summer 2021, a total of 36 states and 4 U.S. territories had legalized the medical use of marijuana and 18 states, two territories and the District of Columbia had legalized adult use of marijuana.

Over this quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century.  But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically.  In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade.  While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court and has evolved as the caseload has declined....  The data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses.  Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. 

November 18, 2021 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (0)

Saturday, November 6, 2021

"A First Amendment Right to Burning Bush: Empowering the Free Exercise Clause to Protect Religious use of Psychedelic Drugs"

The title of this post is the title of this new paper recently posted to SSRN and authored by Michael McDonald, a recent graduate of The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

If the right to freely exercise one’s religion only exists within the confines of all other enacted law, then it is hardly a right at all.  This article argues that strict scrutiny should be the test for adjudicating free exercise claims, which would then allow for the religious use of psychedelic drugs.  First, this article explores developments in Free Exercise Clause jurisprudence during the twentieth century by analyzing how the Supreme Court gradually weakened the free exercise right, particularly in cases relating to Native American religions, and culminating in Employment Division v. Smith.

This article lays out reasons for overturning Smith and returning to the pre-Smith strict scrutiny test for free exercise claims.  Finally, this article contends that, under strict scrutiny, no court could reasonably find a compelling government interest to justify a prohibition of religious psychedelic drug use.  This argument is substantiated with support from modern RFRA cases, as well as prevailing research regarding the positive impact psychedelics have on mental health, which would undermine a state’s purported compelling interest in forbidding its use.

November 6, 2021 in Criminal justice developments and reforms | Permalink | Comments (0)

Tuesday, October 19, 2021

Full policy brief version of "Blowing Smoke at the Second Amendment"

Regular readers are familiar with my regular posts highlighting papers from the on-going series of student papers supported by the Drug Enforcement and Policy Center.  I am excited to now be able to highlight a partnership with the Reason Foundation to turn some of these DEPC student papers into extended policy briefs.   Ohio State College of Law‬⁩ alum Helen Sudhoff has this first full policy brief completed under the title "Blowing Smoke at the Second Amendment," which highlights constitutional problems with federal law prohibiting medical marijuana users from possessing firearms.  Here is the brief's introduction:

The federal government prohibits users of Schedule I drugs from purchasing or possessing a firearm.  Despite that most states have enacted legal medical marijuana programs, marijuana is still federally illegal and designated as a Schedule I substance with no medical value.  Individuals who use medical marijuana in accordance with their state’s licensed programs are nevertheless prohibited from purchasing or possessing a firearm under federal law.  As such, the onus is placed on medical marijuana patients to either disclose their marijuana use, which disqualifies themselves from purchasing a firearm and requires they relinquish possession of all firearms, or misrepresent their status as a marijuana user, risking fines or imprisonment.  The following discussion will address the problems inherent in the federal government’s current regulatory framework for the right to keep and bear arms in the context of medical marijuana use, circumstances that implicate the privilege against self-incrimination, and how to revise the regulatory framework in accordance with the guarantees of the Constitution.

October 19, 2021 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Sunday, October 17, 2021

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

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

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

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

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

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

Thursday, August 19, 2021

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

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

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

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

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

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

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

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

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

Prior related post:

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

Sunday, August 15, 2021

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

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

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

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

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

Wednesday, July 21, 2021

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

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

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

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

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

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

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

Marijuana DUIs are up....

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

Hospitalizations have leveled off....

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

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

Tax revenue has grown....

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

Sunday, June 6, 2021

"Illegal drug market responses to state recreational cannabis laws"

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

Background and Aims

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

Design

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

Setting and cases

Eleven RCL and 40 non-RCL US states.

Measures

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

Conclusions

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

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

Sunday, May 16, 2021

"Five Decades of Marijuana Decriminalization"

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

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

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

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

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

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

Tuesday, May 4, 2021

Effective coverage of marijuana expungement efforts and work still to do

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

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

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

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

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

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

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

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

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

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

May 4, 2021 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Wednesday, March 17, 2021

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

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

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

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

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

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

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

Arrests and Race

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

Social Vulnerability Index

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

Median Household Income, Poverty, and SNAP

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

Homeownership, and Median Home Value

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

COVID-19 Rates and Health Insurance

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

Conclusion

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

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

Monday, March 8, 2021

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

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

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

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

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

Saturday, February 20, 2021

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

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

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

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

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

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

Monday, February 15, 2021

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

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

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

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

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

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

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

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