Marijuana Law, Policy & Reform

Lots of notable green coverage in lots of sections of the Gray Lady

My east coast roots (and bias?) has long led me to look at the New York Times as the "paper of record" in so many ways (and that thinking led me to view as so important  the 2014 New York Times editorial calling for the legalization of marijuana).  But the biggest developments in the marijuana reform space have taken place in other regions, and so other papers, especially the Denver Post and the Boston Globe, have been much more at the forefront of marijuana coverage.

But the Gray Lady seems to be keeping pace with marijuana developments these days, and some headlines from distinct section of the paper this past week highlights all the angles the paper is now covering:

From the local section, "Marijuana Legalization Hits a Wall: First in New Jersey, Then in New York"

From the U.S. section,"Attorneys General From 33 States Urge Pot Banking Reform"

From the "Mind" section, "The Stoner as Gym Rat"

From the "Style" section, "Design’s New Leaf"

And, interestingly, the NYT is also now soliciting tales to tell via this "Reader Center" quesy: "How Has Colorado’s Legalization of Marijuana Affected You? Help us better understand how Coloradans are adapting to their state’s legalization of pot."

Of course, the Gray Lady has not quite yet turned into Marijuana Moment.  But it is still interesting to see the stories it is deciding to cover in this space, and encouraging that they are eager to inquire further.

Elon Musk demonstrates how smoking marijuana and drinking whiskey still prompt different reactions

Elon Musk often generates a lot of media attention, especially from news outlets like CNBC.  But this CNBC article, headlined "Elon Musk smokes weed, sips whiskey on Joe Rogan's podcast," reports on the reasons he is making a lot of news today:

Billionaire Elon Musk took viewers by surprise late Thursday when he smoked marijuana and drank whiskey during a live interview. The Tesla chief executive was speaking with comedian Joe Rogan, an advocate of legalizing weed, on his live internet show when he was handed the joint....

"Is that a joint? Or is it a cigar?" Musk asked Rogan before being told it was a cigarette containing marijuana, which is legal in California, and tobacco. Asked whether he had tried it before, the entrepreneur said: "Yeah, I think I tried one once."

"You probably can't because of stockholders," Rogan said, to which Musk retorted: "I mean it's legal, right?"....

Musk insisted he was not on weed at the time during an extensive interview with The New York Times. The executive shocked investors when he said he was considering taking the firm off the stock market at $420-a-share — 420 being a popular code term for cannabis.

"It seemed like better karma at $420 than at $419," he told the Times. "But I was not on weed, to be clear. Weed is not helpful for productivity. There's a reason for the word 'stoned.' You just sit there like a stone on weed."

Traders are concerned the company may still need a capital injection to help with its cash burn problems. Tesla shares were down 1.2 percent Friday in premarket trade.

These subsequent CNBC stories suggest that Musk will continue to garner attention for his marijuana use (but not his whisky drinking):

Elon Musk may have violated Tesla's business conduct policy by smoking weed

Air Force is looking into Elon Musk's pot smoking: Source

Chris Talyor at is already troubled by where this is going, as evidence by this new Mashable piece headlined "OK, everybody: Stop pot-shaming Elon Musk"

Applicant Sues to Block Ohio from Using Racial Preferences in the Award of Commercial Marijuana Licenses

Over at my blog, I've just posted some details about a new lawsuit challenging Ohio's purported use of a "racial quota" in the award of its large-scale marijuana cultivation licenses. Check out the post here. The suit could have some far-reaching ramifications for state efforts to boost minority participation in the state licensed marijuana industry.

Interesting Opportunity to Try to Shape the WHO’s Scheduling of CBD (and Possibly Domestic Law Too)

Cross posted at Marijuana Law, Policy, and Authority.

The World Health Organization (WHO) is apparently reviewing the scheduling of Cannabidiol (CBD) and 16 other drugs under the 1971 Convention on Psychotropic Substances. Prior to a meeting of the relevant WHO committee in early November, the WHO has asked member states (including the U.S.) for input. The Food and Drug Administration (FDA) is responsible for coordinating the United States’ response. To fulfill its responsibility, the FDA has issued a public call for comments “concerning abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use” of CBD (and the 16 other substances). The call for comments can be found here. Comments may be submitted electronically on the website (see upper right hand corner). Already more than 1,200 comments have been submitted.

I don’t know what sort of comments would convince the FDA to push for re-scheduling. As discussed in Chapter 5 of my book (pages 195-203), the FDA doesn’t put much stock in personal testimonials when making scheduling recommendations under domestic law (i.e., the CSA). For better or worse, it generally demands large scale, double-blind, well-controlled studies to demonstrate the medical efficacy of a drug—a demonstration that is needed to move a drug off of Schedule I (pages 200-201).

And if the WHO decides to reschedule CBD under the Convention, it’s not clear what impact (if any) it would have on scheduling under the CSA. The relationship between the CSA and the Convention is detailed 21 U.S.C. § 811. As discussed in the book (pages 272-275), the CSA seemingly requires the DEA to use the Convention as a floor, but not a ceiling, for purposes of regulating drugs. In other words, it seemingly requires the DEA to regulate drugs at least as stringently as called for by the Convention, but does not obligate the DEA to relax federal controls just because the Convention believes a softer approach is warranted (say, by medical utility).

So with those caveats, let me say that this might be an opportunity to shape the law – or at the very least, it might be an opportunity to teach about how to shape the law by submitting comments to a federal regulatory agency.

Hat tip to Vincente Sederberg, which sent an email earlier this week announcing the call and proposing to help coordinate comments. You can contact the firm here.

Could the States Do Anything to Blunt the Impact of a Federal Crackdown?

Cross-posted at Marijuana Law, Policy, and Authority 

I just returned from the NCSL annual meeting in Boston, where I participated on a Marijuana Federalism panel with Representative Roger Goodman (WA state house) and John Hudak (Brookings). A short recap of the panel can be found here . Consistent with recent reports, all the panelists agreed the Trump Administration is unlikely to crack down on state-licensed marijuana suppliers anytime soon. (John and I have both previously written about the Trump Administration’s approach to marijuana policy, e.g., here and here.)

Nonetheless, given Jeff Sessions’ stated opposition to legalizing marijuana, I think it’s worthwhile to consider what (if anything) the states could do to blunt a federal crackdown, if the Trump Administration did decide to attempt one. Let me offer two possibilities state lawmakers might consider:

1. Create an indemnification fund to help pay the legal expenses of any state-licensed marijuana supplier who faces federal legal sanctions. This would include a supplier who faces a federal criminal prosecution, a civil forfeiture action, or even a civil RICO lawsuit brought by another private citizen.

Why would states ever do this? Individual defendants sometimes lack the ability and / or incentive to optimally (from the state’s perspective) defend themselves against federal claims. For one thing, defendants don't always have the money needed to pursue every viable defense vigorously, especially if their assets have been frozen by the government. In addition, individual defendants capture only a small part of the benefit (to the state) of successfully asserting certain types of defenses. After all, those defenses -- once established -- can be invoked by other, similarly situated defendants.
To illustrate the problem, suppose a Massachusetts-licensed medical marijuana supplier is being prosecuted by the DOJ for distributing marijuana. Her attorneys tell her she could spend $25,000 trying to convince a federal court that her prosecution is barred by the Rohrabacher-Farr amendment (discussed on pages 353-358 of my book), but there’s no guarantee she’ll win – say, because the First Circuit might not follow United States v. McIntoshand the Ninth Circuit’s interpretation of Rohrabacher-Farr. In this case, the supplier might not pursue the defense vigorously (even if she could afford to); she might instead prefer to cut her losses and cut a plea deal, say, by agreeing to shut down her shop if the DOJ drops all of its charges against her. But that may not be the best outcome for the state – it might prefer that the defendant spend $25,000 for even the chance that all state law-abiding medical marijuana suppliers would be declared immune from federal prosecution. Thus, to ensure that defendants vigorously pursue legal defenses that benefit others in the state, the state might help cover individual defendants’ legal expenses (say, using a portion of marijuana tax revenues).
I develop this first proposal in more detail in a symposium article for the Montana Law Review here. It’s loosely modeled on personal liberty laws adopted by northern states in response to the federal Fugitive Slave Act.

2. Adopt poison pill legislation that would make it costly for Congress to preempt certain state marijuana reforms. Some state laws are vulnerable to preemption challenge because they (arguably) undermine one of Congress's goals, like deterring drug use. Citing such reasoning, for example, a few state courts have held that state laws purporting to protect medical marijuana patients from employment discrimination are preempted by the federal CSA (the issue is discussed on pages 672-681 of the book). To defuse the threat that a court would find such measures preempted, a state could pass a second law – one that Congress clearly favors – and then tie the two laws (favored and disfavored) together – i.e., make them inseverable.
To illustrate, suppose Massachusetts was interested in preserving its recently recognized employment protections (discussed here) from a preemption challenge. To do so, the state could pass a law limiting the quantity of marijuana that non-residents are allowed to buy at state licensed shops, similar to the way Colorado once limited non-residents to buying one-quarter ounce of marijuana at its shops (discussed at pages 283-287 of the book). It could then make the new quantity restriction inseverable from the employment protections. While Congress (in theory) might not want states to protect marijuana users from employment sanctions, it might tolerate those protections if the states limit non-resident access to marijuana.
I develop this second proposal in more detail in a new article for the George Washington Law Review here. It’s very loosely modeled on the poison pill tactic in corporate law.

Part of the appeal of both options is that their success does not depend on the DOJ’s willingness to heed past enforcement guidelines or Congress’s willingness to restrict the agency’s spending.

Reactions to Cory Booker's Marijuana Justice Act

Senator Cory Booker (D NJ) has introduced a proposal to repeal the federal marijuana ban. In a nutshell, Booker’s Marijuana Justice Act (MJA) would exempt marijuana from the Controlled Substances Act.

I believe Booker’s proposal is incomplete (and therefore, both unwise and politically unpalatable) because it fails to offer any replacement for prohibition. I develop this argument in a new op-ed at Fortune: http://fortune.com/2017/08/04/senator-cory-booker-marijuana-bill-justice-act-legalization/. Check it out.

The MJA does one additional thing that is worth noting but which I did not have space to address in Fortune: It pressures states to repeal their own marijuana bans. It does so by withholding a portion of federal law enforcement grants from prohibition states (and only prohibition states) if “the percentage of minority individuals arrested [or incarcerated] for a marijuana related offense in a [prohibition] State is higher than the percentage of the non-minority individual population of the State.” (The measure has similar language regarding treatment of low-income populations, but to simplify I’ll focus on racial minorities.)

The wording of the condition is somewhat opaque (raising its own set of problems), but let me illustrate how I think the condition would work in a hypothetical state with a 30% minority population. If minorities comprised more than 70% of those persons arrested or incarcerated on marijuana charges in that state, the state would lose some federal grant money going forward. If minorities comprised 70% or less of those arrested or incarcerated, the state would retain full eligibility for federal grants. The fact that this provision is aimed only at prohibition states (what the MJA calls “Covered States”) is why I say it pressures states to legalize marijuana: if a state does so, its federal grants are safe, even if it enforces any remaining prohibitions--say, on possession by minors--disproportionately against minorities. (This has happened in some legalization states, as in discuss in my book on pages 249 and 521).

I think this is an interesting and novel proposal to address race (and class) disparities in the enforcement of criminal law, and it deserves further consideration. But I think it also raises a handful of serious constitutional concerns (not to mention practical and political ones). Let me briefly flag just two of those legal concerns here.

One problem is that the MJA arguably fails to give states adequate notice of the new conditions it imposes on the receipt of federal grants. The problem arises from tying federal grant funds to the composition of the presently incarcerated population. The problem is that disparities in the racial composition of the incarcerated population undoubtedly stem from actions taken by the states in the past– i.e., before they were aware of the new condition. After all, many of those who are now serving time in state prison on marijuana charges would have been arrested and prosecuted years ago. Even though Congress can condition federal funds on states doing (or not doing) X, Y, and Z, it has to give them clear notice of those conditions in advance. E.g., Arlington v. Murphy, 548 U.S. 291 (2006). I’m not sure whether a condition that seemingly requires states to remedy past discrimination (e.g., by releasing inmates) would pass muster under this test.

A second concern is that the measure arguably amounts to reverse discrimination (or pressures states to engage in the same) in violation of the Equal Protection Clause. Return to my hypothetical state above, with a minority population of 30%. Suppose, fancifully, that this state arrested and incarcerated on marijuana charges only whites. Under the MJA, there would be no consequences for this state. In other words, the MJA only punishes a state if it discriminates against minorities. And the MJA would appear to pressure states to engage in reverse discrimination – for example, to keep its federal grant dollars, a state might have to release only minorities currently serving prison time on marijuana charges, or selectively target whites for marijuana arrests (so as to balance the ledger).  Again, this approach might survive constitutional scrutiny, but it raises some doubts.

The simpler solution might be to preempt state marijuana bans. As I’ve argued elsewhere, that’s a permissible approach for Congress to take and would avoid the clear notice and Equal Protection concerns raised by the MJA.

New Textbook on Marijuana Law, Policy, and Authority

I’m happy to announce that my first-of-its-kind textbook on Marijuana Law, Policy, and Authority will soon be published by Aspen. It will be out in April (in e form) and May (in print). The teacher’s manual and a companion website will be available soon thereafter. Many thanks to Doug and others who have provided helpful feedback on this book over the last 2.5 years!

The book covers a lot of ground, befitting a field that implicates so many different areas of law. The first chapter of the book is now available on SSRN. That chapter provides more details about the book’s coverage and approach, and it also explains why this is such an interesting and worthwhile area of law to study – and not just for those who are interested in practicing in this burgeoning field.

Not coincidentally, I will be posting more this month (both here and at Prawfsblawg) on topics drawn from the book. My first post at Prawfsblawg briefly laid out the case for teaching and writing about marijuana law. Even though most people who read this blog are already sold on the subject, I’ll copy the relevant passage here:

“For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.

Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.

All of these people need help navigating a thicket of complicated and oftentimes conflicting laws governing marijuana. Colorado, for example, has promulgated more than 200 pages of regulations to govern its $1 billion a year licensed marijuana industry. Among many other things, Colorado’s regulations require suppliers to carefully track their inventories, test and label their products, and limit where and how they advertise. These regulations are complicated enough but doubts about their enforceability (highlighted in the questions above) only add to the confusion and the need for informed legal advice.”

In the coming weeks, I will blog about some of the questions noted above. In the meantime, if you are interested in teaching a course or a unit on any aspect of marijuana law, contact me – robert<dot>mikos<at>vanderbilt<dot>edu -- I would be happy to chat.

Trump nominates anti-legalization retired general to run DHS

Despite uncertainty as to his personal views on marijuana, President-elect Donald Trump hasn't shied away from nominating people to his administration who are openly hostile to it. Trump recently nominated Sen. Jeff Sessions (R-AL) to be the next attorney general and Rep. Tom Price (R-GA) as the next director of the Department of Health and Human Services, both of whom have been strong critics of legalization. Yesterday, The Washington Post reported that Trump will soon announce retired Marine General John F. Kelly as the next director of the Department of Homeland Security. While his views on marijuana policy appear slightly more nuanced than those of Session or Price, Kelly is still hostile to marijuana legalization. The Washington Post's Christopher Ingraham writes:

Kelly served as the head of the U.S. Southern Command, a posting that gave him oversight ofU.S. security operations for Central America, the Caribbean and the entirety of South America. Trump settled on Kelly in part for his Southwest border expertise, according to people familiarwith the deliberations.

 

In that role, Kelly grappled with issues relating to the international illicit drug trade and the flow of narcotics, including heroin and cocaine, from countries in the Southern Hemisphere to markets in the United States...

 

Kelly is, however, critical of marijuana legalization. He calls the plant a gateway to harder drugs (this notion is disputed by many drug abuse researchers and the National Institute on Drug Abuse). He does support the use of medical marijuana, however: “I'm not a doctor,” he told the Military Times, “but I'm told it has a medical use. So whether it's veterans or anyone else, if it helps those people, then fine. Medicine is medicine.”

 

Kelly's nomination would be the third Trump Cabinet pick who is an outspoken critic of marijuana legalization. Attorney general nominee Sen. Jeff Sessions (R-Ala.) has been harshly critical of legalization efforts, arguing that “good people don't smoke marijuana.” Rep. Tom Price (R-Ga.), Trump's pick to run the Department of Health and Human Services, has been one of the most reliably anti-marijuana members of Congress in recent years, voting against even modest policy changes.

 

As DHS secretary, Kelly wouldn't have as direct an effect on federal drug policy as the attorney general or the Health and Human Services secretary. But if confirmed, he would be one more Cabinet-level skeptic of marijuana legalization in an era of increasing marijuana legalization at the state level.

"Marijuana really can be deadly – when encountering police officers"

The title of this post comes from this Denver Post article by Christopher Ingraham noting new information from the Charlotte-Mecklenberg P.D. that the September 20th shooting that left Keith Lamont Scott dead was precipitated by simple marijuana possession. 

According to police, plainclothes officers first noticed Scott when he pulled into the parking lot in which they were sitting in an unmarked car waiting to serve a warrant on a wanted suspect, after he began rolling what appeared to be a "blunt." Police say they were not initially interested in Scott but later became concerned when they saw him with a gun. Notably, as The Washington Post's Wesley Lowery reported last week:

Because of that, the officers had probable cause to arrest him for the drug violation and to further investigate Mr. Scott for being in possession of a gun.

After changing into clothes that clearly marked them as police officers, they confronted Scott. They claim they later shot and killed him after he aimed his gun at them, though this newly released video appears to contradict that claim. Whether Scott brandished his weapon in a manner that would legally warrant the use of deadly force hopefully will be clarified when police release all available video of the incident next week (although we perhaps may never have a definitive answer to that question).

Importantly, however, as Ingraham writes: 

It’s not the first time low-level marijuana possession has escalated to a fatal police encounter. Last August, 19-year-old Zachary Hammond was fatally shot by police in Seneca, South Carolina, as he tried to flee from an attempted marijuana bust. In 2012, officers killed unarmed Bronx teenager Ramarley Graham as he tried to flush pot down the toilet. Trevon Cole was doing the same thing when police killed him in Las Vegas in 2010 during a drug raid at which no weapons were found.

 

As the Drug Enforcement Administration notes, nobody has ever died of a marijuana overdose. But aggressive enforcement of drug laws has led to some deaths. Growing efforts to decriminalize or legalize marijuana in part seek to reduce these kinds of police encounters that can turn fatal.

 

Places that have decriminalized possession of small amounts of marijuana treat offenses essentially like parking tickets. Data shows that decriminalization typically leads to drastic reductions in the number of marijuana-related arrests. For instance, the month after the New York City Police Department announced it would treat low-level drug possession as a noncriminal violation instead of a misdemeanor, arrests plummeted 75 percent year over year, according to the Associated Press.

 

But as the cases above vividly illustrate, decriminalization doesn’t eliminate violent encounters. Marijuana was decriminalized in Nevada when Cole was killed. It was decriminalized in New York state when Graham was killed. And it’s decriminalized in North Carolina, where Scott was killed.

 

This is one reason many drug policy reformers say decriminalization isn’t enough...

Indeed, after Colorado legalized recreational marijuana use, the overall arrest rate for marijuana-related crimes fell significantly, although not indiscriminately. As The San Francisco Chronicle recent reported:

In the first two years of legalization, marijuana arrests fell 46 percent as many people complied with the new regulations, according to the Colorado Department of Public Safety. However, while the number of arrests decreased 51 percent for whites, they dropped only 33 percent for Latinos and 25 percent for African Americans. The pot-related arrest rate for African Americans remained nearly triple that of whites.

 

Juvenile marijuana arrests increased by 5 percent overall, but went up 29 percent for Latino youths and 58 percent for black youths. The number of white juveniles arrested fell 8 percent.

Put simply, marijuana won't kill you, but getting caught with it by police might; and, the chance of an encounter with police because of marijuana possession is higher if you're a person of color. If Chelsea Clinton had made this argument during her Ohio campaign stop earlier this week, perhaps she would have saved herself from the mockery of suggesting that marijuana can kill you, a claim she of course took back shortly thereafter.

Should we expect any major federal marijuana reform developments in 2016?

The question in the title of this post is prompted in part by the fact that, as highlighted in this recent post, lots of folks (myself included) expect 2016 to be a big year in the marijuana reform arena largely because many states will be seriously considering, legislatively and/or through voter initiatives, full legalization of marijuana for recreational use.  In addition, 2016 could also include major "on the ground" developments in newer recreational states like Alaska and Oregon and in newer medical states like Illinois and Maryland and New York.

But while 2016 could prove historic for marijuana reform on the state level, I am inclined to predict that this year could well be a huge nothingburger on the federal front.  Absent some unexpected developments, I would be shocked if an essentially lame-duck President Obama or his Department of Justice will see any reason to significantly alter its present Cole-memo, leave-the-states-mostly-alone prosecutorial policies.  And though there are lots of marijuana reform proposals and bills kicking around Capitol Hill, I have no reason to believe or expect any leaders in either the House of the Senate have any real interest in moving any marijuana bills forward (or even having hearings on the topic).  

Of course, if the Supreme Court were to take up for review on the merits the lawsuit brought by Nebraska and Oklahoma against Colorado, then the federal judiciary would quickly become the focal point for possible federal developments.  But, as noted here by Rob Mikos, the US Solicitor General of the Department of Justice urged SCOTUS not to take up this case.  And even if SCOTUS were to decided to consider this suit on the merits, I am not sure the Court would come out with a major ruling in this quirky "original suit" setting in 2016.

But perhaps, living as I do way outside the Beltway, perhaps I am reading the tea leaves wrong about the prospect of some notable federal marijuana reform developments in 2016.  Maybe issues related to federal prohibition will become a topic of discussion on the Prez campaign trail, especially if reform-friendly places out west like Arizona, Colorado and Nevada start looking like major swing states.  And maybe I am missing some other possible development entirely.  For that reason, I would love to hear from readers, in the comments or via e-mail, about whether they expect any noteworthy marijuana reform developments on the federal front in 2016.

Terrific on-going coverage of marijuana reform issues via International Business Times

I recently had the pleasure of speaking at length to a terrific reporter covering marijuana reform issues for International Business Times, and I told the reporter that I was quite impressed with the extent and sophistication of IBT's on-going coverage of these issues.  Thereafter, it dawned on me that I have not consistently highlighted these realities on this blog space.  But here is just an abridged review of some of the great IBT pieces from various reporters in just the last few weeks:

"Rand Paul Courts Marijuana Investors, But Why Aren’t More Presidential Candidates Embracing Pot?"

"PTSD And Cannabis -- Can Researchers Cut Through The Politics To Find Out Whether Weed Works?"

"Oregon Hopes Legal Weed Will End Race-Based Arrests, But Advocates Wary"

"Marijuana Legalization No Longer ‘Political Suicide’ For Presidential Candidates"

"Chile’s Lower House Of Congress Approves Marijuana Bill"

Researchers Find That Medical Marijuana Laws Increase Recreational Marijuana Use Among Juveniles

Marijuana Legalization In Oregon: Portland Airport Allows Travelers To Bring Weed On In-State Flights

A New York teen dies as a consequence, arguably, of marijuana prohibition

Opponents of marijuana reforms have, understandably, made much of any deaths in Colorado that might be reasonably linked in some way to marijuana legalization.  But this sad story from New York, headlined "Bronx Teenager Who Fell From Roof While Fleeing the Police Dies," provides an example of a death that might be reasonably linked to marijuana prohibition:

A Bronx teenager who fell off the roof of a six­story apartment building on Thursday while fleeing police officers died of his injuries on Saturday at St. Barnabas Hospital, the police said.

Authorities said Hakeem Kuta, 17, was with a group of other teenagers who were smoking marijuana Thursday evening in the lobby of the apartment building at 2685 Valentine Avenue in the Bronx. A man who exited the building complained to four uniformed officers, who then entered the lobby.

When Mr. Kuta and several others ran to the roof, two officers chased them. All but Mr. Kuta and a 14­-year-­old were able to elude the police. With officers shouting, “please don’t move,” Mr. Kuta tried to step over a short wall at the edge of the building but stumbled, officials said. The 14­year­old grabbed for Mr. Kuta’s vest as he fell, officials said, but he was not able to hang on.

The Police Department said that the officers appeared to have acted appropriately. After Mr. Kuta fell, officers raced from the roof to give first aid, officials said. Officer Maria Imburgia applied chest compressions until paramedics arrived. Officers made no arrests on Thursday evening, though marijuana was found in the lobby.

"First Church of Cannabis" moves quickly to take advantage of Indiana's controversial religious freedom law

As reported in this Huffington Post article, there is an interesting new cannabis angle on the new law in Indiana that is stirring up much controversy.  Here are the details:

Indiana's new "religious freedom" law has been widely criticized and condemned by many, but an innovative marijuana activist in the state is using the bill's legal protections as a means to set up a new religious sect -- the First Church of Cannabis, where members would aim to use marijuana freely as a sacrament in a state where the substance remains banned.

"It's a new religion for people who happen to live in our day and age," Bill Levin, the church's founder, told The Huffington Post in an interview Monday.  "All these old religions, guys walking across the desert without Dr. Scholls inserts, drinking wine out of goat bladders, no compass, speaking Latin and Hebrew -- I cannot relate to that shit.  I drive by Burger Kings, bars and corn fields. I cannot relate to an antique magic book."

As Indiana Gov. Mike Pence (R) signed the controversial Religious Freedom Restoration Act last Thursday, Levin was filing church registration paperwork with the secretary of state, which was approved on Friday, he announced on the church's Facebook page.

Levin is dead-serious about his new church.  He says it's founded on universal principals of love, respect, equality and compassion.  And similarly to other religious movements like the Rastafarians in Jamaica who see cannabis use as a sacrament, Levin said members of his church will adopt a similar belief in the plant. But unlike the Rastas, there is not a traditional deity at the top of this faith....

Levin is strongly against his state's controversial RFRA, but he said he'll take full advantage of the legal loopholes the bill may create. No stranger to marijuana advocacy, Levin has worked for years to change the laws in his home state through an organization he founded, Relegalize Indiana. "I fought this bill tooth and nail," Levin said. "And because of our brave and brilliant governor," he continued, his voice brimming with sarcasm, "he opened up the door for me to take my campaign to religion. The state will not interfere with religious belief -- well buddy, my religious belief is green with red hairs, and boy do I like to smoke it."

Marijuana is still illegal in Indiana, so it remains unclear if Levin's plan would work under current state laws. While a church that includes sacramental marijuana use is not without precedent, and several have emerged in the United States with varying degrees of success, much of their ability to survive hinges on a state at least decriminalizing marijuana, if not legalizing it for limited purpose. But Abdul-Hakim Shabazz, an Indiana attorney and political commentator, told RawStory that if Levin can convince the state that, under the RFRA, smoking marijuana is part of his religion's practices, he may have "a pretty good shot of getting off scot-free.”

Levin says the announcement of the church has created a firestorm of interest and support. He set up a crowdfunding account last week when the church first received notice that its registration was approved by the state, and as of Monday morning, the church had already raised close to $2,000. He also says that he has personally received thousands of messages of support, and hundreds of people ready to volunteer to help him with his mission. The church's Facebook page, set up just days ago, already has more than 5,000 likes.

Too many marijuana candies and handgun make for suicidal mix in sad Colorado case

After three years of legalization and 15 months of recreational sales, there is now another sad case in which a premature death apparently can be closely connected to the consumption of edible marijuana.   This local story, headlined "Keystone visitor commits suicide after eating marijuana candies," provides these details:

A Tulsa, Oklahoma man visiting Keystone committed suicide after consuming a large amount of edible marijuana candies, according to a Summit County Coroner’s report. Summit County Coroner Regan Wood said the cause of death was a gunshot wound to the head. Luke Gregory Goodman, 22, was staying in Keystone with his cousin at the time of the incident, and was taken to Summit Medical Center Saturday night. Later, he was flown to St. Anthony’s Lakewood Hospital, where he was kept on life support for two days until he died Tuesday morning.

Wood said that Goodman’s cousin reported he and Goodman had consumed edibles earlier Saturday. A CBS4 report says Goodman bought $78 of edible marijuana with his cousin, Caleb Fowler, in Silverthorne. Goodman consumed five peach tart candies in total, each containing 10 mg of the active ingredient in marijuana, the recommended dose for an adult. The back of the package said the candies were supposed to take 1-2 hours take effect.

According to CBS4, Fowler said that several hours later, Goodman became “jittery” then incoherent and talking nonsensically. “He would make eye contact with us but didn’t see us, didn’t recognize our presence almost. He had never got close to this point, I had never seen him like this,” Fowler said.

Later, when his family left the condo, Goodman refused to join them. According to the report, Goodman may have used a handgun he normally carried for protection. Taneil Ilano, a Public Information Officer with the Summit County Sheriff’s Department, said a witness reported that Goodman consumed about four marijuana edibles that day, described as gummy bears. She added that police were dispatched around 10 p.m. on Saturday.

Luke Goodman’s mother, Kim Goodman, told CBS4 that her son had no signs of depression or suicidal thoughts, and believed the large amounts of edibles triggered his death. “It was 100 percent the drugs,” she said. “It was completely because of the drugs — he had consumed so much of it.”

The toxicology results are pending and will take about three weeks to be finalized.

As noted in this prior post from nearly a year ago, in the first part of 2014 two deaths in Denver were linked to marijuana intoxication .  I have been pleasantly surprised that there have not been more of these kinds of tragic cases resulting from misuse of the drug, but my heart now  goes out to everyone connected to this latest tragic incident.

Prior related post:

• How might (rare?) tragedies linked to legal marijuana use impact reform developments?

Might some 2016 presidential candidates start advocating for marijuana reforms?

The question in the title of this post is prompted by this notable new article emerging from inside the Beltway headlined "Marijuana gets lift as 2016 presidential race takes shape." Here are excerpts:

Early signs indicate that marijuana entrepreneurs may have little to worry about as the 2016 presidential campaign takes shape, with some top-rung hopefuls warming to the idea of letting states decide whether to legalize recreational pot.

On the Republican side, those potential candidates include former Florida Gov. Jeb Bush and Texas Sen. Ted Cruz, both of whom have admitted to using the drug during their younger years, and Kentucky Sen. Rand Paul, who has said he was no “choir boy” in college. On the Democratic side, former Secretary of State Hillary Clinton says she never experimented with marijuana but appears open to the idea of allowing states to legalize it.

It’s all good news for Tim Thompson, who commits a felony under federal law every time he sells marijuana to his customers at Altitude, the retail pot shop he opened last July in Prosser, Wash. With Thompson’s store legal under Washington state law, he said it would be a mistake for anyone running for president in 2016 to try to shut down his operation. “They’d be alienating themselves from a large majority of people who are for legalization if they took a hard line against it,” Thompson said.

While the push for legalization has gained great momentum in the past two years, the next president will have to decide whether to enforce the federal law that bans marijuana or follow the Obama administration’s lead in allowing states to tax and regulate it, as long as they do a good job policing themselves.

Legalization emerged as a big winner at last week’s Conservative Political Action Conference in Maryland, where nearly two-thirds of the 3,000 activists who voted in a straw poll said it should be legal for either recreational or medical purposes. Nationally, the most most recent Gallup poll, conducted in October, found 51 percent of Americans backing legalization. But less than a third of conservatives said it should be legal.

The growing popularity of legalization was not lost on the parade of politicians at CPAC. “Well, I was told Colorado provided the brownies here today,” Cruz told his audience, a reference to the first state that allowed recreational pot sales in January of last year.

At the gathering, Paul, Bush and Cruz all said that legalization should be left up to the states, responding to questions from talk show host Sean Hannity of the Fox News Channel. Clinton disclosed her views in June on CNN.

Tom Angell, chairman of the pro-legalization group Marijuana Majority, based in Washington, D.C., said it’s obvious that presidential candidates are paying attention to polls. “Letting states set their own marijuana laws without federal interference is quickly becoming the default position among ambitious politicians in both parties. . . . When voters lead, politicians have to follow or get left behind,” he said.

To be sure, not all of the likely contenders in the top tier are jumping on the bandwagon. Wisconsin Republican Gov. Scott Walker, a crowd-pleaser at CPAC who’s scoring high in early polls, is among those who have consistently opposed legalization. And others say it’s far too early to draw any conclusions on how the issue would fare in 2016.

Kevin Sabet, president of the anti-legalization group Smart Approaches to Marijuana, said that with the general election still 20 months away, it’s hardly a surprise that candidates are using what he called “the states’ rights card” as often as possible. But he noted that even George W. Bush, as a Republican presidential candidate in 1999, said states should have the right to decide whether to legalize medical marijuana. As president, Bush backed the federal law outlawing marijuana. “I doubt that any of these candidates will want to run as the pro-marijuana candidate,” Sabet said. “Even Rand Paul stopped short of endorsing legalization, and he is the most libertarian of the bunch.”

Paul, who won the straw poll Saturday at CPAC for the third consecutive year, had plenty of backing from pro-marijuana activists at the conference. Many of his supporters said they believe Paul would move to legalize marijuana if he won the presidency. “He’s more receptive to it than any other candidate,” said Dave Hargitt of Fayetteville, N.C., president of the North Carolina chapter of Republicans Against Marijuana Prohibition, a group that had a booth at the exhibit hall at CPAC. “God gave us all free will, and that’s free will to make good decisions or bad decisions – it’s not the government’s place to tell me what I can and cannot do.”

Paul, who backs reduced penalties for drug offenses, appears ready to make marijuana a campaign issue. Last week at the political conference, he accused Bush of hypocrisy for opposing medical marijuana as governor even though he had smoked pot as a prep student.

John Baucum, president of the Houston Young Republicans, said that’s a message that resonates with the large group of voters under 40. “First of all, I think he’s somebody who can win,” Baucum said of Paul. “We don’t see a lot of the candidates reaching out for that demographic, except for Rand.”...

Thompson, co-owner of the Washington state pot store, said it would be a relief to not have to worry about the federal law prohibiting marijuana after Obama leaves office in January 2017. “Having it controlled by the state is a good idea,” he said. “In this area – and it’s a conservative area – most people like it when the federal government has less control of what we do in our day-to-day lives, especially something like this. It’s basically adults just trying to enjoy themselves.”

Some prior related posts:

• "Marijuana is America's Next Political Wedge Issue: Pot politics, in 2016 and beyond"

• Hillary Clinton, Rand Paul, ASA's new ad, and the shifting politics of drug policy

• "Is Hillary Clinton ready for marijuana's 2016 push?"

• Conservatives convene and comment on cannabis at CPAC

• GOP strategist highlights why "marijuana law reform could be a key issue" for Republicans in 2016

• Other than Senator Rand Paul, are any GOP leaders likely to become supportive of marijuana reform?

• Will Charles Koch invest in marijuana reform along with broader criminal justice reform?

Newest (and most interesting?) laboratory experiment with marijuana reform officially underway in Alaska

As detailed in this lengthy AP piece, headlined "No street parties, no citations: Alaska quietly ushers in legalized marijuana," the state nicknamed The Last Frontier is now an important and especially interesting new frontier in the state-level laboratories of democracy experimenting with recreational marijuana reforms. Here are the basics:

Alaska on Tuesday became the third U.S. state to legalize marijuana. But the historic day passed with little public acknowledgement in a state with a savvy marijuana culture that has seen varying degrees of legal acceptance of the drug for 40 years.

Supporters said the day was a milestone, comparing it to the end of Prohibition. But unlike in Colorado and Washington state, there were no street parties and public smoking displays in Alaska's biggest cities.

Dolly Fleck-Phelps, a Kenai resident with an ancillary marijuana business, said she thought people would look back on the day as a turning point for Alaska. "Absolutely this is history in the making," Fleck-Phelps said. "This is the opening of the door. Now it's time for the real work to begin."

Legalization marked the end of a 43-year political battle for Bill Parker, 70. The Anchorage man, who was listed as a sponsor of the initiative, first banded together with a group of young Democrats elected to the state House of Representatives to introduce a legalization bill in 1972. "Gee, there weren't enough votes to worry about," the retired deputy commissioner of corrections said.

Parker's hopes for legal weed dwindled as he saw Alaska become more Republican and more conservative over the years. He said perhaps the marijuana vote marks the end of that pendulum swing. Now that pot is legal, Parker is ready to take a pause to enjoy the moment, but he said he won't stop fighting. "Well, it makes me feel good. It's not over, of course. The initiative passed by between 5 and 6 percent, so 40 some percent of the people voted against it. Not all of them are ready to lay down and go along," Parker said....

Alaska has had a complicated history with marijuana over the years. The Alaska Supreme Court in 1975 said personal marijuana possession was protected under the state constitution's right-to-privacy clause. In 1998, voters legalized medicinal marijuana. But over the years, state lawmakers twice criminalized any possession, creating an odd legal limbo, and never created rules for medical marijuana dispensaries to operate.

Placing Alaska in the same category as Washington state and Colorado with legal marijuana was the goal of the pro-pot coalition that included libertarians, rugged individualists and small-government Republicans who prize the privacy rights enshrined in the Alaska state constitution....

As of Tuesday, adult Alaskans can not only keep and use pot, they can transport, grow it and give it away. A second phase, creating a regulated and taxed marijuana market, won't start until 2016 at the earliest. That's about the same timeline for Oregon, where voters approved legalizing marijuana the same day as Alaska did. But the law there doesn't go into effect until July 1.

Police throughout Alaska were prepared to hand out $100 citations for anyone caught smoking pot in public, but departments stretching more than 1,100 miles from Nome on the state's western coast to Juneau in the southeast panhandle hadn't issued a ticket during the day. "We haven't even received a call or complaint about anybody doing it," said Steve Goetz, deputy chief for the University of Alaska Fairbanks police department....

Others remained concerned on Tuesday about the details not yet worked out regarding legalization. When the public voted last November to legalize marijuana use by adults in private places, voters left many of the details to lawmakers and regulators to sort out. Elisabeth Schafer, a Sitka resident visiting Juneau for work, said she was worried about the state developing a workable system of regulations. "I just wish we had waited longer as a state," Schafer said. "I don't want to blaze the way for other states."

Among the questions remaining on Tuesday were what public places consumption was prohibited in, and how the regulations for a new commercial industry would look. The initiative bans smoking in public, but it doesn't define what that means, and lawmakers left the question to the alcohol regulatory board. There were missteps even as the board decided pot can't be smoked in places generally accessible to the public, like parks, schools or on the street in Alaska.

Board members met via a teleconference Tuesday, but it started late because organizers gave out the wrong telephone number. The call originated from the board's Anchorage office. However, a locked gate blocked access to the meeting site.

I think Alsaka is an especially interesting state to watch closely in the months and years ahead because it is such a unique state in so many ways: its size, small population, history of libertarian/conservative values and its relative isolation from the rest of the US. Also, Alaska as part of the second set of jurisdictions legalization recreational marijuana, can and should be able to draw some regulatory lessons from Colorado and Washington as it creates a new regulatory structure for a commercial marijuana industry. And, especially as debate over federal marijuana reform begins to heat up in Congress in the months and years ahead, Alaska's two GOP senators might provide to be especially important national players within the establishment of the political party that has been recently most resistant to reform of federal criminal drug laws.

Colorado trying to cope with unexpected cannabis combustion problems

The front-page of today's New York Times has this notable lengthy article about a notable problem increasing in Colorado since marijuana legalization. The piece is headlined "Odd Byproduct of Legal Marijuana: Homes That Blow Up," and here is how the article starts:

When Colorado legalized marijuana two years ago, nobody was quite ready for the problem of exploding houses. But that is exactly what firefighters, courts and lawmakers across the state are confronting these days: amateur marijuana alchemists who are turning their kitchens and basements into “Breaking Bad”­style laboratories, using flammable chemicals to extract potent drops of a marijuana concentrate commonly called hash oil, and sometimes accidentally blowing up their homes and lighting themselves on fire in the process.

The trend is not limited to Colorado — officials from Florida to Illinois to California have reported similar problems — but the blasts are creating a special headache for lawmakers and courts here, the state at the center of legal marijuana. Even as cities try to clamp down on homemade hash oil and lawmakers consider outlawing it, some enthusiasts argue for their right to make it safely without butane, and criminal defense lawyers say the practice can no longer be considered a crime under the 2012 constitutional amendment that made marijuana legal to grow, smoke, process and sell.

“This is uncharted territory,” said State Representative Mike Foote, a Democrat from northern Colorado who is grappling with how to address hashoil explosions. “These things come up for the first time, and no one’s dealt with them before.”

Is there now (or should there be) a "cannabis canon" as more law schools teach marijuana reform?

The question in the title of this post is the question I am asking myself as I gear up for second year of teaching my Marijuana Law, Policy & Reform Seminar.  As the National Law Journal highlighted in this lengthy article, headlined "Law Schools Firing Up Marijuana Law Classes," a law school course devoted specifically to marijuana laws and policies was novel back in Fall 2013 when I first taught my seminar, but not it is becoming all the rage.  Specifically, I am aware of marijuana-focused courses this Spring being offered at:

• University of Denver College of Law,  titled "Representing the Marijuana Client"

• Hofstra University School of Law, titled "Business and Law of Marijuana"

• Santa Clara University College of Law,  titled "Drug Policy Practicum"

• Vanderbilt Law School, titled "Marijuana Law & Policy"

Conversations with some of the professors teaching these courses, and even the diverse course titles themselves, strongly suggest that various (and perhaps very distinct) themes and materials will be at the center of these various courses. But I am wondering now whether all the different students in all these different courses will (or should) get exposed to certain essential marijuana law materials.

To this end, I know that Vanderbilt's Rob Mikos is working on a casebook tentatively titled Marijuana Law and Policy, and I surmise his (somewhat traditional?) law school course is focused a good bit on the substance of federal and state marijuana laws and the (ever-evolving) doctrinal implications of these laws. In contrast, I have found myself inclined to focused my seminar on the social and political history of intoxicant prohibitions in the United States and the (ever-evolving) prospects for and potential consequences of continued marijuana law reforms. Consequently, I am not going to expect my students to delve too deeply into the doctrinal intricacies of particular state and federal laws.

Ironically, one reason I have been encouraging more and more folks to consider developing new courses around marijuana law, policy and reform is because I see so many distinct and distinctly valuable ways to present recent legal developments to students and to encourage them to think critically about the modern marijuana reform movement. And yet, as the title of this post indicates, I am finding myself growing ever more concerned that law professors working in this space should perhaps be working toward identifying a core cannabis canon.

Brookings highlights "Eight Big Things to Watch" concerning marijuana policy in 2015

Via e-mail, I was alerted to this Brookings FixGov blog post by Brookings Fellow John Hudak titled "Marijuana Policy in 2015: Eight Big Things to Watch." The e-mail provided this helpful summary of various points made in the longer posting:

1)    Oregon, Alaska Plan & Prepare for Legal Marijuana: How well each of these state legislatures and alcohol regulatory bodies work together will determine the success or failure of marijuana policy in these states. As it borders Washington, Oregon’s commercial and regulatory choices will be particularly crucial in understanding to what extent states may strive for market advantages vis-à-vis bordering states.

2)    Identifying the Next States to Legalize: 2015 will show which states are serious about ballot initiatives in 2016.  It’s widely expected that California will advance an initiative and Florida might take another swing at approving medical marijuana, after falling just short of approval in 2014.

3)    Cannabis Policy & State Legislative Action: In some states, the battleground for enacting items like the legalization of recreational or medical marijuana is not the ballot box, but the state legislature.

4)    Cannabis & the Courts: Multiple high-profile lawsuits surrounding marijuana policy may play out in 2015.  For instance, Coats v. Dish Network may settle the issue of employer-sponsored marijuana testing and a Supreme Court case involving Nebraska and Oklahoma’s suing of Colorado over legalizing marijuana will indicate the willingness of federal courts to engage in this policy area.

5)    Answers to Questions About D.C.’s Marijuana Policy:  Clarity about the future of marijuana policy in Washington, D.C. will almost surely be left to the federal courts, particularly if there is congressional inaction on Initiative 71.

6)    Colorado & Washington (& Uruguay) Continue Legalization: InColorado, edibles, product testing, and homegrows will be on the agenda.  The policy challenge Washington faces is that legal weed could be too costly to lure consumers from the black market.  On the international front, Uruguay works hard to ready a bureaucracy and a consumer base for the experiment.

7)    Data, Data, Data: One key takeaway for policy advocates, both supporters and opponents, will be to patiently wait to draw conclusions as the data are currently incomplete and imperfect.  2015 will offer steady flows of data from Colorado and Washington, and eventually other states.

8)    Presidential Candidates & Cannabis: Marijuana policy will definitely be part of the 2016 conversation in a way that it has not in previous presidential campaigns. And the issue will be particularly interesting to watch as it does not fall neatly along party lines.

I think points 7 and 8 are the most interesting, dynamic and unpredictable stories to watch from among this list. I would also add to the list...

9) Political Party leaders and Pot Policy:  Key leaders of both parties inside and outside the Beltway have, to date, said relatively little about marijuana reform. Cautious "establishment" politicians --- ranging from Prez Obama to Hillary Clinton to Jerry Brown on the D side and from Mitch McConnell to John Boehner to Mitt Romney on the GOP side --- will only be able to dodge the new terms of the modern policy debate for so long.

Big money investor Founders Fund getting into the cannabis industry

As reported in this CBS News article, headlined "$2 billion company betting big on marijuana," a notable new player has become an investor in the marijuana industry. Here are the details:

Until now, it's been a few rich individuals who secretly funded burgeoning pot companies, but for the first time, a major investment firm is going to put multimillion dollars behind marijuana. It's a partnership between two investors and the first institutional investments in pot, reports CBS News correspondent Anthony Mason.

Geoff Lewis's firm, Founders Fund, a $2 billion company, made its name investing early in new companies like Facebook, Spotify and SpaceX. But now it's betting on pot. "We discuss all our investments for a long time. ...So particularly in this case, we did an extra, extra deep dive on the business," Lewis said. The business is recreational marijuana, now legal in four states. Medicinal marijuana is legal in more than 20.

Privateers Holdings CEO Brendan Kennedy said it is a watershed moment. "It's important for our company, but it's also important for the entire industry," Kennedy said. Privateers Holdings is the parent company of three cannabis brands: Tilray, which grows marijuana in Canada; Leafly, an online database of different pot strains and stores; and Marley Natural, from the family of reggae star Bob Marley, which aims to become the "Marlboro of marijuana."

Kennedy faced challenges along the way. "Raising money is always difficult, but raising money in this particular industry is the hardest thing I've ever done," he said. But Founders Fund is backing Kennedy's companies because it sees a future in what they says is already a $40 billion business in the U.S....

"The surest way of doubling your money investing in cannabis stocks is to fold it back over and put it in your pocket," UCLA professor Mark Klieman warned. Klieman studies the cannabis marketplace and cautions: investors beware. "A lot of people are crowding into the marijuana industry because they think they are going to be able to sell a legal good at illegal prices," Klieman said. "Competition's not going to allow that. Legal cannabis is going to be dirt cheap, and I think a lot of people are going to lose their shirts trying to sell it."

That is, if they don't get arrested first. Under federal law, marijuana is still illegal. While the Justice Department has said it won't prosecute cannabis companies following state laws, that could change. Kennedy said he doesn't see a risk, however. "Over 80 percent of Americans believe the medical cannabis should be legal, 8 out of 10; you can't get 8 out of 10 American's to agree on anything," Kennedy said.

Lewis said this isn't a politically motivated investment. "We're investing because we think it's a great business," he noted. Both Lewis and Kennedy believe marijuana will be fully legal in the U.S. within a decade. As of now, there are no numbers on how many businesses have already started, or how many jobs have been created, but many experts agree the marijuana market could become a $150 billion to $200 billion market worldwide.