Tuesday, August 2, 2022
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 “But that message won’t be heard if it’s outdated, irrelevant or insulting to cannabis consumers.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.
Tuesday, July 26, 2022
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.
July 26, 2022 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)
Friday, July 1, 2022
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.
Monday, June 20, 2022
"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.
Friday, June 10, 2022
"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.
Thursday, April 28, 2022
As mentioned in a prior post, the tail end of a busy semester means I can now 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. Excitingly, this year we opened up this platform to papers submitted by students not from The Ohio State University Moritz College of Law, and we were able to add this paper that has the title of this post and is authored by Marcus Brown of University of North Carolina School of Law. Here is the abstract of this paper:
Proponents of drug decriminalization typically emphasize the reform’s utilitarian potential to reverse mass incarceration trends, reduce racial disparities within the justice system, and minimize the economic costs associated with drug enforcement. However, decriminalization has an additional, underappreciated potential to shift drug war-centered policing practices. This article details how recent decriminalization legislation in New York, Oregon, and Colorado limits police authority to expand stops, conduct searches and make arrests for drug possession. It also describes how drug decriminalization reduces police department incentives to conduct pretextual stops and militarize its personnel and divisions. Thus, drug decriminalization should also be understood as a vital tool in limiting intrusive policing practices. Including this perspective amongst the arguments for drug decriminalization strengthens the potential for substantive reform and may increase support for further legislation.
Thursday, April 14, 2022
I mentioned previously that a big group of Marijuana Law, Policy & Reform seminar students are scheduled to present this week on the research topics of their choice. The fifth exciting (and excitingly different) topic for this coming week's presentations is to be focused on the Fourth Amendment. Here is how the student describes the topic and some background readings:
The Fourth Amendment protects the right to be free from unreasonable searches and seizures. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, but this protection has been watered down over the past 100 years. The War on Drugs led to significant changes in Fourth Amendment law as police began using more intrusive tactics to enforce drug laws, in particular with a focus on marijuana law enforcement from the 1990s to the present. Police use tactics such as the Terry stop and frisk, warrantless vehicle searches, and drug sniffing dogs are commonly used to detect even small amounts of marijuana, and as of 2018, 89.6% of marijuana arrests were for possession only.
Giving police officers significantly lead way to decide when a search is appropriate has arguably led to racial profiling and consequently, contributed to the racial disparities we see in marijuana law enforcement today. From 2001 all the way through 2018, a Black person was almost four times as likely to be arrest for marijuana possession as a white person, despite studies showing these groups use marijuana at substantially equal rates. Further, a Black person is also more likely to be stopped by police for alleged traffic violations and more likely to be searched during a stop.
With the passage of marijuana legalization (decriminalization, medicinal legalization and recreational legalization) we have began to see some of these police practices, restoring some of the Fourth Amendment rights lost due to the war on drugs. In particular, my project will focus on whether the scent of marijuana is still sufficient to prove probable cause for a search under these various regimes, and whether a drug sniffing dog that is trained to detect marijuana can likewise provide probable cause for a vehicle search. The hope is that by eliminating these intrusive tactics (saying they do not provide probable cause), we will regain the Fourth Amendment rights lost due to the war on drugs, particularly for those who have been the most affected, people of color, and that racial disparities in marijuana law enforcement will begin to decline.
Please watch this video explaining police procedures (and misconduct) in the traffic stop of Tae-Ahn Lea. Audit the Audit, Officers Sued for Searching Vehicle During Traffic Stop, YouTube, (Sept. 30, 2019) .
Oklahoma Municipal Assurance Group (OMAG) piece analyzes the application of the Fourth Amendment in legal states. Matt Love, How Other States Apply the Fourth Amendment to Medical Marijuana (Oct. 15, 2019)
Wednesday, April 13, 2022
As students in my Marijuana Law, Policy & Reform seminar are continuing to "take over" my class through presentations on the research topics of their choice, I continue to post here background on their topic and links to relevant materials. The fourth of this coming week's presentation is focused on record clearing, and here is how the student describes the topic and provided readings:
Effective cannabis law reform cannot occur without also addressing the harm caused to those who have obtained criminal records due to harsh drug laws. For decades, people throughout Ohio and the rest of the country have been punished by the criminal justice system due to non-violent cannabis offenses. Thankfully, many states have legalized, or are in the process of legalizing cannabis. Cannabis legalization is an important step in cannabis law reform because it means people will no longer be charged for cannabis related offenses. However, legalization alone does nothing to help those who have already obtained cannabis related charges and convictions. The issue with having cannabis-related convictions is not just the fines or jail time that may come with it, but also the negative consequences of having a criminal record, which continues to affect offenders long after the case is closed. Cannabis legalization, therefore, must be accompanied by expungement reform in order to help put an end to the negative consequences that those with cannabis related criminal records are experiencing.
Thus, my presentation focuses on analyzing different expungement provisions that have been included in cannabis legalization laws. Although many states that have legalized cannabis have included provisions on expungement reform, some of these provisions are not as effective as they could be. Based on my research, I make the following recommendations for Ohio lawmakers to take into consideration when drafting laws on cannabis expungement. First, I recommend lawmakers to create an individual bill focused solely on cannabis expungement to avoid conflict with Ohio’s “One Subject” rule. Second, I recommend that cannabis records should be automatically expunged for any non-violent cannabis offenses as well as other offenses that can be tied to cannabis, such as paraphernalia and loitering offenses. Third, I recommend that there should be no waiting period for the expungement— all cannabis records should start to be expunged as soon as the law is passed. Lastly, I recommend that the bill should create an independent committee to carry out the expungements to avoid overburdening prosecutors and court staff.
J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study 133 Harv. L. Rev. 2460 (2020).
Akua Amaning, Advancing Clean Slate: The Need for Automatic Record Clearance During the Coronavirus Pandemic, Center for American Progress (Jun. 25, 2020),
Mark Gillspie, Cleveland Seeks to Expunge 4k Minor Marijuana Convictions, Associated Press (April 7, 2022)
50-State Comparison: Marijuana Legalization, Decriminalization, Expungement, and Clemency, Collateral Consequences Resource Center (last updated Jan. 2022)
Tuesday, March 29, 2022
As we inch closer and closer to full marijuana legalization, we should all be asking an important question: what happens to the people with criminal records for doing the very things that will soon be legally a-ok?In recent years, record clearing has gained a lot of steam, and not just in the marijuana space. This is probably in large part because we know that a clear criminal record makes someone a more attractive job applicant, tenant, and more. Prior drug convictions may also prevent someone from accessing public housing and other benefits.As a primer to understanding the complex world of record clearing, I am delighted to invite Hannah Miller into our class. Ms. Miller is the Program Manager for Opportunity Port, a new initiative started by Columbus City Council last year that streamlines the record clearing process for individuals in central Ohio. Opportunity Port is not specific to clearing marijuana-related records. But, in Ohio, the record sealing process generally applies the same way to most types of non-violent offenses, whether they involved marijuana or not.I look forward to hosting Ms. Miller, as she will be able to provide a local twist on the story of record clearing for our class.
Monday, February 14, 2022
Notable Code for America paper on "Automatic Record Clearance Policies in Legalization and Decriminalization Legislation"
I just saw this recent 18-page report from the folks at Code for America. The full title of the report highlights the goals and essential contents of this notable new document: "Recommendations for Automatic Record Clearance Policies in Legalization and Decriminalization Legislation: 11 best practices for creating high-impact, implementable policies that clear conviction records — automatically." Long-time readers know I have long been particularly interested in criminal justice impacts of marijuana reform and especially record clearance efforts. (I wrote one of the first big explorations of this topic in my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," and more recently co-authored another piece titled "Ensuring Marijuana Reform Is Effective Criminal Justice Reform.")
This new document is a great primer on this enduring topic, and this two-pager provides the particulars of the 11 recommendations in the full report. But I would urge everyone to take the time to check out the full report, and here is part of its text:
Our recommendations are presented in three categories. First are recommendations about the process of automatically clearing records. They include an advisory against relying on petition-based record clearance, a statement on the importance of the process being initiated and coordinated by a state-level agency, and an explanation about why there need to be deadlines attached to every major milestone of the automatic record clearance process. These recommendations are very important for implementation, but are also important to maximizing impact. In order to build public trust in automatic record clearance, we close this section with a recommendation that government study and publicize findings on the impact of automatic record clearance, especially as it relates to equity-related metrics such as racial disparities.
Next are recommendations about who should be eligible for automatic record clearance. In order to maximize impact, legislation needs to provide eligibility that is as expansive as possible. The recommendations explain that, at a bare minimum, all records should be cleared for conduct that is no longer criminalized or can no longer be charged. We advise against including conditions that disqualify people from eligibility because they reduce impact and also make implementation more challenging. Expansive eligibility must be anchored in the law, so we offer an advisory to be as specific as possible when drafting legislation — leave nothing open to interpretation because that causes challenges for implementation. We also recommend that after a bill is passed, no system actors (e.g. judges, prosecutors) should have discretion over who gets relief in the process of automatically clearing records because it leads to inequity and is nearly impossible to implement.
Finally, we offer recommendations about who should have access to and jurisdiction over cleared records. People living with convictions should be able to access confidential documentation about their criminal case histories, whether their records are cleared or not, and there is a big opportunity for government to offer this as a human-centered, trauma-informed digital service. We recommend that courts maintain confidential documentation of records that have been affected by record clearance rather than having all traces of records completely destroyed. We also recommend that courts maintain jurisdiction over these records so that people can continue to exercise their legal rights to pursue any other post-conviction relief remedies besides automatic record clearance, and so that people can access the information about their cleared records should they need it in the future.
Thursday, February 3, 2022
I was very pleased to have received this morning following terrific guest post content from Professor Scott Bloomberg of the University of Maine School of Law about a notable recent federal circuit court ruling:
Since December 2014, Congress has included a rider in its annual appropriations acts that prohibits the Department of Justice (“DOJ”) from expending funds to prevent states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 537, 133 Stat. 13, 138 (2019). The rider — most commonly known as the Rohrabacher-Farr Amendment — is an important source of protection from federal prosecution for medical marijuana businesses and users.
Until recently, the only federal circuit court to interpret the Rohrabacher-Farr Amendment was the Ninth Circuit. In 2016 in United States v. McIntosh, the court held that the amendment only prohibited the DOJ from prosecuting marijuana businesses that strictly complied with their states medical marijuana rules. This strict compliance standard meant that if a business stepped out of line — including, in theory, if it only extended a toe over the line — the DOJ could prosecute the business for federal drug crimes.
I have never been a fan of the McIntosh court’s strict compliance standard. I don’t think it is workable in practice and I find it to be a rather unsound interpretation of the Rohrabacher-Farr Amendment. So, when the First Circuit had an opportunity to interpret the Amendment in United States v. Bilodeau, I decided to submit an amicus brief arguing as much.
The brief explains that the strict compliance standard offers little real protection for marijuana businesses given the complex state regulatory codes with which they must comply. What’s more, even if the compliance standard were loosened (say, companies only had to remain in “material compliance” rather than “strict compliance” to avoid the risk of prosecution) tethering the DOJ’s ability to prosecute medical marijuana businesses to a business’s non-compliance with state law creates an inherent problem. Under a standard that bases the DOJ’s authority to prosecute businesses on whether that business has complied with state medical marijuana rules, the best way for a state to shield its medical marijuana businesses from federal prosecution is to not have any medical marijuana rules. The more carefully a state regulates medical marijuana, the more likely its businesses are to be subject to federal prosecution. That incentive structure may not only prevent states from “implementing their own State laws that authorize” medical marijuana, it also flies in the face of the DOJ’s Cole Memo, which instructs states to regulate marijuana closely.
The McIntosh court’s strict compliance standard also relies on an artificial distinction between a state’s “laws that authorize” medical marijuana and a state’s enforcement of such laws. According to the court, when the DOJ prosecutes medical marijuana businesses that fail to comply with a state’s medical marijuana rules, the DOJ does not prevent the state from implementing the “laws that authorize” medical marijuana because the business’s conduct was not authorized by those laws. But laws authorizing states to enforce violations of their “laws that authorize” medical marijuana cannot be so easily divorced from the underlying laws. Enforcement rules are intertwined with the underlying laws for many reasons. Most significantly, a looming threat of federal prosecution would deter many businesses from ever entering the state’s marketplace. The threat would also undermine the state’s enforcement authority over those businesses that do—after all, what rational business would admit to even the most menial of regulatory violations if doing so would open a risk of federal prosecution?
In light of these problems with the strict compliance standard, my amicus brief urged the First Circuit to adopt a more expansive interpretation of the Rohrabacher-Farr Amendment. I argued that the Amendment creates a blanket prohibition on the DOJ’s authority to prosecute state-licensed medical marijuana businesses for marijuana-related offenses (with some limited exceptions).
The First Circuit last week handed down its opinion in Bilodeau, which departed from the McIntosh court’s strict compliance standard but did not go quite as far as I urged. As Judge Kayatta explained, the Ninth Circuit’s strict compliance standard affords the DOJ more power to undermine states’ medical marijuana laws than Congress could have intended.
With federal prosecution hanging as a sword of Damocles, ready to drop on account of any noncompliance with Maine law, many potential participants in Maine's medical marijuana market would fasten fearful attention on that threat. The predictable result would be fewer market entrants and higher costs flowing from the expansive efforts required to avoid even tiny, unintentional violations. Maine, in turn, would feel pressure to water down its regulatory requirements to avoid increasing the risk of noncompliance by legitimate market participants.
[Moreover, Maine’s medical marijuana] rules were not drafted to mark the line between lawful activity and cause for imprisonment. Rather, as with most every regulated market, Maine declined to mandate severe punishments (such as, for example, the loss of a license) on participants in the market for each and every infraction, no matter how small or unwitting…. To turn each and every infraction into a basis for federal criminal prosecution would upend that decision in a manner likely to deter the degree of participation in Maine's market that the state seeks to achieve.
After departing from the strict compliance standard, the court declined to clearly demarcate when the DOJ can (and cannot) prosecute medical marijuana businesses. Instead, the court reasoned that, under the facts of this case, the DOJ could subject the defendants to federal criminal punishment because their alleged conduct also constitute a crime under Maine’s marijuana laws.
The First Circuit’s interpretation of the Rohrabacher-Farr Amendment in Bilodeau should bring some comfort to medical marijuana businesses in the First Circuit. The interpretation gives the DOJ less discretion to prosecute medical marijuana businesses than does the Ninth Circuit’s strict compliance standard. This increased protection could become all the more important if a Presidential administration less friendly to marijuana takes power. (And, for marijuana law professors, Bilodeau and McIntosh present an excellent opportunity for a class exercise on statutory interpretation!)
February 3, 2022 in Business laws and regulatory issues, Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, January 18, 2022
Modern day Fiorello La Guardia?: US Senate candidate Gary Chambers smokes marijuana in new campaign ad protesting criminalization
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.”
Monday, January 3, 2022
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:
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.
To examine whether cannabis decriminalization was associated with reduced racial disparity in arrests for cannabis possession between Blacks and Whites in the U.S.
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.
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.
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.
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.
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.
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.
Thursday, November 18, 2021
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.
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.
Tuesday, October 19, 2021
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.