Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, November 18, 2020

"Weed Ballots and the Constitution"

Cover-legal-talk-today-384x384The title of this post is the title of this segment to which I contributed at the Legal Talk Network.  I was quite gratified when folks from the Network reached out to me after my post-election post here titled "After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?."  It was an abosulte joy to speak at length with Laurence Colletti, producer at Legal Talk Network, about my (crazy?) ideas concerning possible constitutional challenges to federal marijuana prohibition. Here is how the segment is set up:

Is it unconstitutional for the federal government to ban marijuana? In 2005, it wasn’t according to the U.S. Supreme Court in Gonzales v. Raich.  But with more states legalizing marijuana in the 2020 election, does that same analysis apply?
Professor Douglas Berman from The Ohio State University Moritz College of Law breaks it down.

Especially because I fear that legislative action to reform federal marijuana laws may still be a long time off, I continue to believe would-be reformers ought not forget litigation as a means to advance overdue reforms.

A few prior related posts:

November 18, 2020 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Wednesday, November 11, 2020

Hoping this is the last Veterans Day in which veterans lack equal access to medical marijuana

Because the US Department of Veterans Affairs prohibits its doctors to recommend medical marijuana to patients, current federal law essentially puts veterans last, not first, when it comes to access to medical marijuana.  Regular readers know I have regularly blogged about a range of issues relating to veterans and their access to marijuana (many posts on this topic are linked below).  I feel a genuine and deep debt to anyone and everyone who serves this nation through the armed forces, and I feel strongly that veterans should be able to have safe and legal access to any and every form of medicine that they and their doctors reasonably believe could help them with any ailments or conditions.

Especially in the wake of a big election in which so many Americans voted to allow greater legal access to marijuana, I hope that Veterans Day 2020 will be the last one in which veterans do not get the services and respect that they deserve in this arena.  Even though there are many issues that divide this nation, I would hope we can all come together to support treating veterans at least as well as other Americans when it comes to access to the medicine of their choice.

Some recent prior related posts:

November 11, 2020 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

"Potus and Pot: Why the President May Not (and Should Not) Legalize Marijuana Through Executive Action"

The title of this post is the title of this essay authored by Robert Mikos.  The essay was written and posted to SSRN months before the November election, but it is arguably even more timely today.   Here is the piece's abstract:

Could the President legalize marijuana, without waiting for Congress to act?  The 2020 Presidential Election has shown that this question is far from hypothetical.  Seeking to capitalize on frustration with the slow pace of federal legislative reform, several erstwhile presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead.  This Essay warns that such promises are both misguided and dangerous, because they ignore statutory and constitutional constraints on the President’s authority to effect legal change.  It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that means having to wait for Congress to pass new legislation.  To be clear, this Essay is not a defense of our current federal marijuana policy.  That policy is a mess, regardless of one’s views towards legalization.  But proponents of reform need to recognize that Congress made this mess, and only Congress is capable of cleaning it up.

November 11, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Saturday, November 7, 2020

What a difference a decade makes: recalling marijuana reform efforts in 2010 California and now in 2020 South Dakota

Talking to one of my favorite people about the greatness and unpredictability of democracy in the USA, I realized that it is worthwhile to put the amazingly consistent pro-reform marijuana election results of 2020 in a bit of historical context.  For now, I will leave it to true historians to write on a broader canvas, as I just want to highlight what a difference a decade makes. 

The first very significant and well-funded campaign for statewide marijuana legalization took place in deep blue California in 2010.  Then and there, California Proposition 19 lost pretty badly with 53.5% of California voters being against legalization, and only 46.5% being in favor.  Notably, among the folks in avowed opposition to this reform were US Senators Barbara Boxer and Dianne Feinstein, then-Democratic gubernatorial candidate Jerry Brown, then CA Gov Arnold Schwarzenegger, then-Democratic Attorney General Candidate Kamala Harris, and then-Prez Obama's Attorney General Eric Holder and his drug czar Gil Kerlikowske

Fast forward only 10 years, and we have seen extraordinary political, legal and social developments on so many fronts related to marijuana prohibition, and perhaps this is no more clear than the results in deep red South Dakota in 2020.  This year the voters in South Dakota considered both Initiated Measure 26 to legalize medical marijuana, which passed by a vote of 70% for and only 30% against, and a state constitutional amendment for full legalization, which passed by a vote of 54% for and only 46% against.  To my knowledge, there were precious few political figures who spoke out in avowed opposition to either of these reforms, and I am certain that Prez Trump's Attorney General did not weigh in on these state marijuana reform ballot measures.

This is a truly remarkable political and legal story, though perhaps even more remarkable is that we have seen no formal federal legislative reforms in this arena even over a decade of extraordinary change.  I will (not-so-boldly) predict that we will see some form of federal statutory reforms over the next decade, but I am not at all confident about just when or what these reforms might look like.  I will predict that 2010 CA Democratic Attorney General Candidate Kamala Harris, who is now in 2020 Vice President Elect Kamala Harris, might end up having a lot of impact on this matter.

November 7, 2020 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, November 4, 2020

After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?

Eighteen years ago, Angel Raich and her co-plaintiffs filed this complaint that argued that federal marijuana prohibition was unconstitutional on multiple theories.  She claimed not only that federal marijuana prohibition exceeded Congress's authority under the Commerce Clause, but also that it violated the Fifth, Ninth and Tenth Amendments.  A few years later, the Supreme Court took up and rejected only the Commerce Clause claim 6-3 in Gonzales v. Raich, 545 U.S. 1 (2005).  In light  of the remarkable and continuing nationwide citizen support for ending marijuana prohibition, I think it is time to consider a renewed constitutional attack on federal prohibition, a Raich 2.0, that renews these claims and adds one under the Eighth Amendment.

Notably, the Court's composition has changed dramatically since its ruling in Raich, with only Justice Breyer remaining from the Court's majority and only Justice Thomas remaining from the Raich dissent.  Among the new Justices, there is a reasonable basis to speculate that at least two Justices (Justices Gorsuch and Barrett) and perhaps as many as four Justices (add in Chief Justice Roberts and Justice Kavanuagh) might be inclined to join Justice Thomas to reconsider the Commerce Clause ruling in Raich.  

These same groups of Justices might likewise be inclined, perhaps, to breathe some life into the Ninth and Tenth Amendments in this context.  One might further speculate that Justices Breyer, Kagan and Sotomayor might be open to considering a Fifth Amendment claim in this content.  And, given established precedent that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,"  Trop v. Dulles, 356 U.S. 86, 110 (1958), and that "the modern practices of the States ... are indicative of our 'evolving standards of decency'," Ford v. Wainwright, 477 U.S. 399, 419 (1986), I believe the dramatic modern state medical and recreational marijuana reform could make at least some enforcement of federal marijuana prohibition problematic under the Eighth Amendment.

I am not here seeking to assert that a federal constitutional challenge to federal marijuana prohibition will be sure to prevail on any of these fronts.  But a whole lot has changed quite dramatically since the ruling in Gonzales v. Raich, 545 U.S. 1 (2005), including a bunch of red state reforms via voters this election cycle.  All these  changes lead me to continue to wonder if and when we might soon see an effective effort to renew constitutional challenges to federal marijuana prohibitions. 

November 4, 2020 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Some (too early) speculations on the (uncertain) future of marijuana reform after big state wins Election Night 2020

Ballot-map-type2-minAs of Wednesday morning after a very long 2020 Election Night, there is a lot which remains uncertain politically, but one matter is quite clear: marijuana reform is very popular all across the United States.  As noting in this post last night, marijuana reform ballot initiatives prevails by pretty large numbers in states as diverse as Arizona, Mississippi, Montana, New Jersey and South Dakota.   This Politico article, headlined "1 in 3 Americans now lives in a state where recreational marijuana is legal," provides some political context:

New Jersey and Arizona, with 8.9 million and 7.3 million residents, respectively, are the biggest wins for advocates this year.  Legalization in New Jersey is expected to create a domino effect for legalization in other large East Coast states, including Pennsylvania and New York.

South Dakota, Montana and Mississippi, while much smaller, are significant in another way: As red states, the passage of marijuana measures illustrates the shift in Republican sentiment toward marijuana.

The impact of these ballot measures will be felt in Congress, especially if Democrats regain control of the Senate.  If all the measures ultimately pass, a third of House members will represent states where marijuana is legal, as will a fourth of the Senate.  If Democrats end up in control of both chambers next year, expect those legal state lawmakers to be called upon to vote on significant changes to federal marijuana policy — including removing all federal penalties for using it.

As of this writing, it is still unclear who will be in the White House for the next four years, but it seems increasing clear that Democrats will not be in control of the Senate.  This reality leads me to speculate that, despite the big 2020 state ballot wins, it will still be quite challenging for Congress to move forward with any significant federal statutory marijuana reforms.  Whether to pursue a modest or major form of federal reform already divides Democratic lawmakers in various ways, and I doubt that Republican leadership in the Senate will be eager to prioritize or even advance various bills on this topic.  If the person in the White House decides he wants to focus on this issue, these political realities could surely change.  But, at this moment, it seems to me unlikely that a large number of lawmakers at the federal level will be keen to prioritize these matters in the short term.

But continued non-action at the federal level could actually make even more space for state-level reforms to continue apace.  As the Politico excerpt highlights, the outcome in New Jersey should increase the likelihood of traditional legislative reforms in states like New York and Pennsylvania and maybe other northeast states.  Also, the big ballot wins in red states in 2020 also makes even more likely that there will be ballot initiatives for full legalization or medical marijuana reform in a half-dozen or more states in the coming years.  Just off the top of my head, I count Arkansas, Florida, Idaho, Missouri, Nebraska, North Dakota, Ohio and Oklahoma as all real possibilities for state initiatives perhaps as early as 2022.

November 4, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, October 5, 2020

Noting a notable decline in marijuana arrests in 2019 according to FBI data

As always, the folks at Marijuana Moment have lots of great timely coverage about lots of timely marijuana reform topics.  But as one especially interested in the intersection of criminal justice and marijuana reform issues, I found this piece from a few days ago especially worth noting:

Marijuana arrests in the U.S. declined in 2019 for the first time in four years, a new federal report shows.  While many expected the state-level legalization movement to reduce cannabis arrests as more markets went online, that wasn’t the case in 2016, 2017 or 2018, which each saw slight upticks in marijuana busts year-over-year.  But last year there was a notable dip, the data published this week shows.

There were a total of 545,601 marijuana arrests in 2019 — representing 35 percent of all drug arrests — according to FBI’s Uniform Crime Reporting program.  That’s down from 663,367 the prior year and 659,700 in 2017.  Put another way, police across the country made a cannabis bust every 58 seconds on average last year.  Of those arrests, 500,394 (92 percent) were for possession alone.

“A decline in cannabis related arrests is better than seeing an increase for a fourth year in a row, but the amount of these arrests is still abhorrent,” Marijuana Policy Project Executive Director Steve Hawkins told Marijuana Moment.  “There is no reason to continue punishing adults for consuming a substance that is less harmful than alcohol. Arresting adult cannabis consumers has a dramatically disproportionate impact on communities of color, is a massive waste of law enforcement officials’ time and resources and does nothing to improve public health or safety.”...

“At a time when a super-majority of Americans support marijuana legalization, law enforcement continues to harass otherwise law abiding citizens at an alarming rate,” NORML Political Director Justin Strekal told Marijuana Moment.  “Now is the time for the public to collectively demand that enough is enough: end prohibition and expunge the criminal records to no longer hold people back from achieving their potential.”

While there’s no solitary factor that can explain the recent downward trend in cannabis cases, there are one-off trends that could inform the data.  For example, marijuana possession arrests fell almost 30 percent in Texas from 2018 to 2019, and that seems to be connected to the legalization of hemp and resulting difficulties police have had in differentiating the still-illegal version of the cannabis crop from its newly legal non-intoxicating cousin.

At the federal level, prosecutions for marijuana trafficking declined in 2019, and drug possession cases overall saw an even more dramatic decline, according to a report published by the U.S. Sentencing Commission in March.  Federal prosecutions of drug-related crimes increased in 2019, but cases involving marijuana dropped by more than a quarter, according to an end-of-year report released by Supreme Court Chief Justice John Roberts in December.

October 5, 2020 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, August 13, 2020

Thorough review of "Where Vice Presidential Candidate Kamala Harris Stands On Marijuana"

1563932774784Regular readers surely know of my appreciation for all the work done at Marijuana Moment to cover all sorts of marijuana issues, and this recent posting on the record on Senator Kamala Harris highlights why that resource does so much more than anyone else on this front.  Specifically, the posting goes on and on, because Harris has a long record, and here is how the coverage gets started (with links from the original):

Joe Biden has selected Sen. Kamala Harris (D-CA) as his vice presidential running mate, the campaign announced on Tuesday.

The presumptive Democratic presidential nominee’s choice to join him on the ticket has evolved significantly on marijuana policy over her career.  Though she coauthored an official voter guide argument opposing a California cannabis legalization measure as a prosecutor in 2010 and laughed in the face of a reporter who asked her about the issue in 2014, she went on to sponsor legislation to federally deschedule marijuana in 2019.

It remains to be seen whether she will push Biden in the same direction, as the former vice president has maintained opposition to ending marijuana prohibition despite supermajority support among Democrats.

While Harris, a former attorney general of California, made marijuana reform a major component of her criminal justice platform when she unsuccessfully ran in the 2020 Democratic presidential primary, she’s been less vocal about the issue since dropping out in December 2019.

Convincing Biden to come around seems like a steep task in any case.  Some advocates suspect that the Democratic National Committee’s platform committee voted against an amendment to add legalization as a 2020 party plank specifically because it’s at odds with the presumptive nominee’s agenda.  Biden has drawn the line at decriminalizing marijuana possession, expunging past convictions, modest federal rescheduling, medical cannabis legalization and letting states set their own policies.

But it remains the case that Harris is the chief Senate sponsor of the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act — a comprehensive piece of legalization legislation that includes various social equity and restorative justice provisions.  Advocates will be watching to see if she continues to advocate for the reform move as she’s on-boarded to the Biden campaign.

The senator indicated in July that she doesn’t plan to push the presumptive presidential nominee on the issue.

Here’s a deeper look at where Harris stands on marijuana [click through to see it all]:

August 13, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (2)

Saturday, July 11, 2020

"Why Won’t Democrats Just Come Out for Legalizing Marijuana?"

Joe-biden-marijuanaThe question in the title of this post is the title of this new commentary at The Nation authored by John Nichols. The piece is in the same vein as the one noted here asking why Joe Biden won't embrace legalization.  Here are excerpts:

Some political issues are hard to wrestle with.  Some are easy.  Legalizing marijuana is easy.

A Pew Research Center survey found last fall that Americans back legalization by a 67-32 margin.  The numbers spike among Democrats, 78 percent of whom favor ending this form of prohibition.  But there’s also majority support — 55 percent — among Republicans.  Among voters under age 30, support for legalization is sky-high.

Enthusiasm for legalization extends far beyond the large number of Americans who are recreational users of marijuana to include millions of people who recognize, as does the American Civil Liberties Union, that “Marijuana Legalization Is a Racial Justice Issue.”...

When the [Democratic] party’s task force on criminal justice reform released its policy recommendations this week, legalization was off the agenda.  That was just one example of the caution that permeates the 110-page document submitted to the Democratic National Committee’s platform drafters by the six task forces that were set up in May by presumptive Democratic presidential nominee Joe Biden and his chief rival for the party’s nomination, Vermont Senator Bernie Sanders....

There’s criticism of mass incarceration and a good proposal to restrict federal funding for states that maintain cash bail systems. But there’s no plan to abolish the scandal-plagued Immigration and Customs Enforcement agency or to defund the police with an eye toward establishing new law enforcement models that strive for public safety and justice....

Color of Change senior director of criminal justice campaigns Scott Roberts told Politico that Biden “still seems to embrace kind of a law-and-order lite.” That was certainly the case when it came to upending marijuana laws.

The commission rejected legalization — the popular position backed by Sanders. Instead, it stuck to the more cautious approach that’s been maintained by Biden, a supporter of the drug war during his own Senate years who has softened some but not all of his old positions. Instead of legalization, the commission proposed to “decriminalize marijuana use,” reschedule cannabis on the Controlled Substances Act (CSA), and leave it to the states to decide about legalization.

The National Organization for the Reform of Marijuana Laws concluded that the proposal “is out of step with public opinion [and] would do little to mitigate the failed policy of federal prohibition.”

“It is impractical at best and disingenuous at worst for the Biden campaign to move ahead with these policy proposals. Rescheduling of marijuana under the Controlled Substances Act would continue to make the federal government the primary dictators of cannabis policy, and would do little if anything to address its criminal status under federal law,” explained Erik Altieri, the executive director of the National Organization for the Reform of Marijuana Law.  “Rescheduling marijuana is intellectually dishonest. Just as cannabis does not meet the strict criteria of a Schedule I controlled substance, it similarly does not meet the specific criteria that define substances categorized in schedules II through V.”

Why didn’t the commission simply endorse the Marijuana Justice Act, which has been introduced by New Jersey Democrat Cory Booker in the Senate and House Democrats Barbara Lee and Ro Khanna?  Sanders supports the measure, as do two of Biden’s vice presidential prospects, Warren and Senator Kamala Harris.  The answer is that Biden has a long history of opposing legalization — going so far in his resistance to the idea that, last year, Representative Alexandria Ocasio-Cortez suggested that the former vice president was employing “Reagan-era talking points.”

Prior related post:

Is marijuana reform really a "Superweapon Biden Refuses to Use"?

 

July 11, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Polling data and results, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, July 6, 2020

Is marijuana reform really a "Superweapon Biden Refuses to Use"?

EJ3gu5eWsAEdEfSThe question in the title of this post is drawn from the headline of this great new Atlantic piece by Edward-Isaac Dovere fully titled "The Marijuana Superweapon Biden Refuses to Use: Legalizing marijuana is extremely popular. So why won’t Joe Biden embrace the idea?".  Here are extended excerpts from an interesting piece worth reading in full:

Democratic political consultants dream of issues like marijuana legalization. Democrats are overwhelmingly in favor of it, polls show.  So are independents. A majority of Republicans favor it now too. It motivates progressives, young people, and Black Americans to vote. Put it on the ballot, and it’s proved a sure way to boost turnout for supportive politicians. It’s popular in key presidential-election states, including Michigan, Pennsylvania, Colorado, Florida, Arizona, and Virginia. There’s no clear political downside — although marijuana legalization motivates its supporters, it doesn’t motivate its opponents. For the Democratic presidential nominee, the upsides of supporting it would include energizing a very committed group of single-issue voters and making a major move toward criminal-justice reform and the Bernie Sanders agenda.

Joe Biden won’t inhale.

Democrats eager for Biden to support legalization have theories about why he won’t.  His aides insist they’re all wrong.  It’s not, they say, because he’s from a generation scared by Reefer Madness. It’s not, they say, because he spent a career in Washington pushing for mandatory minimum sentencing and other changes to drug laws.  It’s definitely not, according to people who have discussed the policy with him, because he’s a teetotaler whose father battled alcoholism and whose son has fought addiction, and who’s had gateway-drug anxieties drilled into him.  With legalization seeming such an obvious political win, all that’s stopping Biden, current and former aides say, is public health.  He’s read the studies, or at least, summaries of the studies (campaign aides pointed me to this one).  He wants to see more.  He’s looking for something definitive to assure him that legalizing won’t lead to serious mental or physical problems, in teens or adults....

If Biden really has his eyes on public health, he should think about how many Black people end up in jail for marijuana sale and possession, argues Jackson, Mississippi, Mayor Chokwe Lumumba — a young Black progressive who oversaw local decriminalization in his city in 2018....  Alternatively, John Fetterman, the lieutenant governor of Pennsylvania, says Biden should think about how legalization could raise tax revenue in the post-pandemic economy of state budget deficits....

Amid the criticism that Biden hasn’t taken a definitive stance on legalization, it’s easy to lose track of how far ahead he is of any other major-party presidential nominee in history in terms of changing marijuana policy.  He’d decriminalize use, which would mean fines instead of jail time, and move to expunge records for using.  He’d remove federal enforcement in states that have legalized the drug.  That’s further, by far, than Donald Trump, or Barack Obama, has gone.  Biden would move marijuana off as a Schedule 1 narcotic, the same category as heroin, but would not take it off the illegal-drugs schedule entirely, so that federal law would treat it the way it does alcohol or nicotine....

“As science ends up with more conclusive evidence regarding the impact of marijuana, I think he would look at that data. But he’s being asked to make a decision right now. This is where the science guides him,” Stef Feldman, Biden’s policy director, explained to me....  There isn’t some conclusive study about health effects that Biden is ignoring, but one is also not likely to emerge anytime soon.  And though they insist this is all about health, other ripples from legalization are on the minds of institutionalists like Biden and his close advisers: trade deals that require both sides to keep marijuana illegal would have to be rewritten, half a century of American pressure on other countries about their drug policies would be reversed, and hard-line police unions would have to be convinced that he wasn’t just giving in to stoners. 

Realistically, marijuana isn’t a priority right now for the campaign.  Legalization is at once too small an issue for Biden’s tiny team to focus on and too large an issue to take a stand on without fuller vetting.  And it comes with a frustration among people close to Biden, who point out that liberals talk about trusting science on everything from climate change to wearing masks — and, notably, wanted vaping restricted because the health effects were unclear — but are willing to let that standard slide here because they want marijuana to be legal.

Biden’s compromise: going right to the edge of legalization, while appointing a criminal-justice task force for his campaign whose members have each supported at least some approach to legalization.  But that sort of signaling doesn’t get people to the polls.  “Being cute is fine. Being bold is motivating,” Ben Wessel, the director of NextGen America, a group focused on boosting political involvement among younger voters, told me.

“If Biden said he wants to legalize marijuana tomorrow, it would help him get reluctant young voters off the fence and come home to vote for Biden — especially Bernie [Sanders] supporters, especially young people of color who have been screwed by a criminal-justice system that treats them unfairly on marijuana issues,” Wessel told me.  Publicly supporting marijuana legalization would be an easy, attention-grabbing move, and might help many Sanders diehards get past the fact that he’s not where they want him to be on the rest of their candidate’s democratic-socialist agenda. 

In 2018, top Democrats credited a legalization ballot initiative in Michigan with boosting turnout and producing the biggest blue wave in the country — winning races for governor, Senate, attorney general, and secretary of state, along with flipping two congressional seats and multiple state-legislature seats.  A ballot initiative is expected for the fall in Arizona, New Jersey, South Dakota, and possibly Montana.  Anyone who believes — hopefully, or out of cynical political calculation — that Biden will announce some big change in his thinking, aides told me, will be disappointed. 

I really like lots of aspects of this commentary, and I generally believe support for marijuana reform is a sound and significant political strategy these days.  But, as this piece highlights, when Biden's opponent is Donald Trump, it will still be easy for Biden to claim to be the most reform-minded candidate.  And while support for full legalization might attract younger voters, it also will attract hard questions about whether Biden would support legalizing other drugs.  By saying he will follow the research and the science, Biden can appear both wise and flexible on an issue that can still generate more heat than light.

Moreover, I think the political calculations can be a bit more nuanced here if one thinks about swing states and swing voters.  A number of potential swing states, ranging from Georgia and North Carolina to Iowa and Ohio and Wisconsin (and Texas?), are not states with a track record of significant voter support for full marijuana legalization.  Perhaps even more importantly, key voting blocks like suburban women and older white men are the populations that have generally been most resistant to marijuana reforms.   Though I still think support for major marijuana reforms would be a political plus for Biden, I do not think it is obviously a "superweapon" being left on the sidelines.

July 6, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, May 21, 2020

Bipartisan coalition of state attorneys general urge Congress to include banking access for marijuana businesses in COVID relief bills

As reported in this press release from earlier this week from the Colorado Attorney General, "a bipartisan coalition of 34 state and territorial Attorneys General [on Tuesday urged]  Congress to pass as part of upcoming COVID-19 relief legislation the federal Secure and Fair Enforcement (SAFE) Banking Act (H.R. 1595) or similar measures that would give legal marijuana-related businesses access to the federal banking system."  Here is more from the press release:

Under existing law, federal regulators prohibit financial institutions from providing services to marijuana businesses in states where medical or retail marijuana sales are legal. Forcing legal businesses to operate as cash-only operations poses serious safety threats, creating targets for violent and white-collar crime. The SAFE Banking Act permits marijuana-related businesses in states and territories with existing regulatory structures to access the federal banking system.

The SAFE Banking Act has widespread, bipartisan support with 206 cosponsors in the U.S. House of Representatives. The House passed the bill in September 2019. The HEROES Act relief legislation, which the House approved last week, also included the language of the SAFE Banking Act.

In their letter, the Attorneys General note that the COVID-19 pandemic has shed new light on problems that the SAFE Banking Act is intended to remediate, including health and safety concerns stemming from frequent and large cash exchanges.

The full text of the letter can be read here.

Also released with this letter ws this effective report from the Attorney General Alliance Cannabis Project titled "Solving An Untenable Situation: The Public Health and Safety Rationale Behind The Secure and Fair Enforcement Banking Act."

May 21, 2020 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Sunday, May 17, 2020

"The 'Free Market' for Marijuana: A Sober, Clear-Eyed Analysis of Marijuana Policy"

The title of this post is the title of this new paper recently posted to SSRN and authored by H. Justin Pace.  Here is its abstract:

Marijuana is prohibited at the federal level.  At the same time, states are not only decriminalizing marijuana but attempting to provide a regulatory apparatus for its sale. This has created a unique business environment.  In some ways there is a true “free market” for marijuana in states where it has been legalized — free, that is, of the legal and financial infrastructure available to fully licit businesses in America.

Contracts may not be enforceable because they lack a legal purpose.  Relief in bankruptcy court may not be available, either as a debtor or as a creditor.  Use of a legal entity to limit liability and take advantage of entity personhood may be impracticable.  Federal money laundering and other laws effectively restrict access to the banking system, forcing marijuana businesses to operate as purely cash businesses.  The USPTO refuses to register federal marks related to marijuana.  Marijuana businesses face challenges in obtaining competent legal counsel to guide them through a market free on one hand regulated on the other.

The odd legal posture has implications for considering marijuana policy through an economic lens.  Any analysis of marijuana externalities should consider any additional externalities created by that odd legal posture.  An analysis of policy options for mitigating negative externalities should also factor in the additional costs for marijuana businesses due to this “free market.”  The uncertainty, from a policy perspective, counsels in favor of applying heuristics when considering policy options: this paper offers three and applies each.

This is the first paper to use this situation to examine the value offered by our legal and financial infrastructure.  An inability to use it hurts marijuana businesses in very real ways.  But, at the same time, marijuana businesses are able to operate — to thrive even — nonetheless.  That infrastructure is both more and less valuable than is appreciated, and in surprising ways.  Ultimately, this paper advocates federal action that facilitates a continued incremental, state-by-state approach to marijuana reform.

May 17, 2020 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, May 5, 2020

"Reconsidering Federal Marijuana Regulation"

The title of this post is the title of this new article authored by Paul J. Larkin, Jr. available via SSRN.  Here is its abstract:

The Controlled Substances Act (CSA) prohibits the cultivation and distribution of marijuana by placing it in a category (Schedule I) reserved for drugs that are unhelpful and dangerous.  In so doing, the CSA approached this problem from the wrong direction.  People use drugs for medical or recreational purposes, and each one requires a separate legal scheme.

Medical Marijuana Use: For more than 50 years, Congress has entrusted to the Commissioner of Food and Drugs the decision whether a particular drug is “safe” and “effective” and therefore can be sold throughout the nation.  The reason is that those decisions require the scientific expertise of professionals in the fields of medicine, biochemistry, and the like, not the legal knowledge of Justice Department lawyers or the moral sensibilities of the electorate.  Congress should leave to the judgment of the FDA Commissioner the decision how federal law should regulate medical-use marijuana.

Recreational Marijuana Use: American society permits alcohol and tobacco to be sold under regulation.  For alcohol, the Twenty-First Amendment empowers states to decide whether and how to sell liquor without much room for supplementary federal regulation.  For tobacco, the Family Smoking Prevention and Tobacco Control Act of 2009 authorizes the FDA Commissioner to regulate the distribution of tobacco products.  Congress should consider whether to follow the same approach here.  There are various factors relevant to that decision.  For example, long-term marijuana use can lead some users to become dependent on, or addicted to, the drug, or to suffer serious mental disorders, such as psychosis.  Legalizing recreational marijuana use also will increase the number of roadway accidents attributable to cannabis intoxication. Whether the benefits of recreational marijuana use outweigh those harms is the question that Congress should answer.

May 5, 2020 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Wednesday, April 22, 2020

Student presentation on "Marijuana Reform and Gun Ownership"

This will be another exciting week as students in my Marijuana Law, Policy & Reform seminar are finishing up their presentations on research topics of their choice. The fourth presentation slated for this week will focus on how marijuana reforms intersect with gun ownership. Here is the student's description of his topic and some background readings he has provided:

My presentation will focus on the interaction between legal marijuana and gun ownership.  I will begin by analyzing federal firearms laws and their practical implementation by the Bureau of Alcohol, Tobacco, and Firearms (ATF). I then look through examples of the conflicts these laws present in states which have legalized marijuana, and how federal laws currently prohibit any individual from exercising both their right to consume marijuana in legal states and their right to own a firearm under the Second Amendment. For some background reading, here are some helpful links:

Paul Barach, Why Can’t Medical Cannabis Patients Own Guns?, PotGuide (Jan. 17, 2020). 

Open Letter to All Federal Firearms Licensees, Bureau of Alcohol, Tobacco, Firearms and Explosives (Sept. 21, 2011).

Aimee Green, Medical Marijuana Cardholders Can’t Be Denied Concealed Gun License Solely Because they Use Pot, Oregon Supreme Court Rules, OregonLive (May 19, 2011).

Mike Lowe, Mixed Legality of Marijuana on State, Federal Levels Leaves Gun Owners in Limbo, WGN9 (Jan. 9, 2020).

April 22, 2020 in Assembled readings on specific topics, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Student presentation on "How Farm Bill's legalization of hemp-derived CBD products could impact federal marijuana reform"

As mentioned before, the semester is winding down and students in my Marijuana Law, Policy & Reform seminar, soldiering on via Zoom, are making presentations on research topics of their choice. The third presentation slated for this week will focus on the the Farm Bill and federal reforms. Here is part of the student's description of the issue and some background readings she has flagged:

My presentation and my paper focus on how the legalization of hemp-derived CBD products, through the Farm Bill, could have an impact on the federal legalization of marijuana.  A few sources I used to help with this research are:

Jeff Smith, What marijuana companies can learn from federal legalization of hemp, Marijuana Business Daily (Feb. 27, 2020).

Jeremy Burke & Skye Gould, States where marijuana is legal, Business Insider (Jan. 1, 2020).

Kimberly Holland, CBD v. THC: What's the Difference?, Healthline (May 20, 2019).

U.S. Department of Agriculture, Farm Bill

John Hudak, The Farm Bill, hemp legalization and the status of CBD: An explainer, Brookings Institute (Dec. 14, 2018).

April 22, 2020 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, April 17, 2020

Congressional Cannabis Caucus makes bipartisan call for state-legal cannabis businesses to be included in next COVID relief package

As detailed in this letter, a bipartisan group of US representatives are urging House Leadership to include state-legal cannabis businesses in COVID-19 relief efforts.  Here are excerpts from the two-page missive addressed to Nancy Pelosi and Kevin McCarthy:

As you draft the next COVID-19 relief bill, we write to ask that you address one of the shortcomings of the CARES Act — the exclusion of state-legal cannabis businesses and their employees. The COVID-19 crisis response demands the full participation of the American people, businesses, and workforce.  However, without relief, a very large population is left without the means to execute the required public health measures and continue to provide financially for their families.

The state-legal cannabis industry is a major contributor to the U.S. economy and workforce, employing over 240,000 workers across 33 states and four territories, and generating $1.9 billion in state and local taxes in 2019.1,2 As states respond to the COVID-19 crisis by shuttering businesses to mitigate the virus’ spread, jurisdictions across the country have recognized cannabis businesses as “essential.”  Essential businesses, in many places, can operate during the pandemic provided they abide by required public health safety measures.  Like other businesses with continued operations, cannabis businesses have met the moment by preserving access to treatment for patients with chronic conditions, donating protective clothing, and manufacturing equipment for medical use.  However, unlike other small businesses, cannabis businesses are not eligible for the CARES Act programs.

State-legal cannabis businesses need access to CARES Act programs to ensure they have the financial capacity to undertake the public health and worker-focused measures experts are urging businesses to take.  This includes access to and participation in SBA’s loan programs — financial support that is designed to pay workers, group health care benefits, and family or sick leave. Current SBA policies prevent cannabis businesses from accessing the Paycheck Protection Program (PPP), Emergency Economic Injury Disaster Loans (EIDLs), EIDL grants, or SBA loan forgiveness – programs intended to help businesses fight COVID-19 in safe and equitable ways....

Given the nature of the epidemic, we must ensure that everyone has the capacity to carry out the recommended public health and worker-focused measures.  Without doing that, we risk undercutting the public health efforts nationwide.  We ask that House leadership include provisions to allow state-legal cannabis businesses and the businesses who work with this industry to access the critical support they need during this unprecedented time.

April 17, 2020 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Wednesday, April 15, 2020

Student presentation on "Marijuana Stocks"

As students "take over" my Marijuana Law, Policy & Reform seminar through presentations on research topics of their choice, I continue to enjoy hearing about (and posting here about) their selected topics. The third presentation slated for this week will focus on marijuana stocks. Here is part of the student's description of the issue and some background readings he has flagged:

While the market for investors is nearly impossible to predict, as the Covid-19 pandemic is currently demonstrating, certain industries seem to be “recession proof” and are viewed as “safer” investments. One such industry is the “sin” industry.  Stocks that fall under this category include tobacco, alcohol, weapons, gambling, sex, and most importantly, marijuana.  While many of these industries have been publicly traded on major US stock exchanges for decades, the first marijuana stock was not traded until February 27, 2018.  Thus, the industry is still in its infancy with many questions left unanswered.  I will focus on three areas of law impacting marijuana stocks: 1) the Controlled Substance Act, 2) taxes, and 3) fraud. Further, the history of marijuana stocks in the US, the potential outlook for marijuana stocks in the future, and my opinion on which marijuana stock will be the most successful will be discussed.

Fabian Gorsler, A Marijuana Company is Listed on the U.S. Stock Exchange for the First Time, Highsnobiety (Feb. 27, 2018).

Casey W. Baker, Marijuana’s Continuing Illegality and Investors’ Securities Fraud Problem: The Doctrines of Unclean Hands and IN PARI Delicto, 12 J. Bus. Entrepreneurship & L. 93 (2019).

Erin Fuchs, The Legal Risk of Investing in Weed is ‘Remote’ and ‘Theoretical’, Yahoo Finance (Nov. 3, 2018).

April 15, 2020 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Taxation information and issues | Permalink | Comments (0)

Friday, March 27, 2020

"Cannabis finds its moment amid coronavirus outbreak"

CoronavirusandcannabisgraphicThe title of this post is the title of this notable new Politico piece.  Here are excerpts:

Cannabis is turning out to be the one thing the coronavirus can’t destroy.

Marijuana sales are booming, with some states seeing 20 percent spikes in sales as anxious Americans prepare to be hunkered down in their homes potentially for months. Weed sellers are staffing up too, hiring laid-off workers from other industries to meet demand. And in the midst of a historic market meltdown, stock prices for cannabis companies have surged, in some cases doubling since the public health crisis began.

“We are hiring because we are having to shift our business a bit,” said Kim Rivers, CEO of Trulieve, which is valued at $1 billion. The company is staffing up its delivery fleet, retail workers, and people to handle increased inventory shipments. “Now is a great time [to apply], particularly if you’re in a business that has seen layoffs.”

Nearly all of the 33 states with legal medical or recreational markets have classified marijuana businesses as an essential service, allowing them to remain open even as vast swaths of the retail economy are shuttered. San Francisco and Denver initially announced plans to shut down dispensaries, but immediately backpedaled after a public furor.

Weed shops are essentially being treated the same as pharmacies, reflecting a dramatic shift in cultural perceptions about the drug over the last decade. “It is a recognition that it has taken on much greater significance around the country,” said Rep. Earl Blumenauer (D-Ore.), a longtime Capitol Hill champion for cannabis. “This is something that makes a huge difference to the lives of hundreds of thousands of people every day. I do think that this might be part of a turning point.“

Concerns about whether smoking pot is the smartest response to a pandemic that’s causing severe lung injuries in tens of thousands of Americans have been largely drowned out. "Public opinion has pushed lawmakers to think about cannabis — and particularly medical cannabis — in different ways than they used to," said John Hudak, a cannabis policy expert at the Brookings Institution, and author of Marijuana: A Short History. "A lot of state policymakers are trying to get this right and they obviously see the risk of shutting down a dispensary to be higher than the rewards of shutting down a dispensary."...

The burgeoning industry does face some stiff financial headwinds: The massive stimulus package moving through Congress this week to help beleaguered businesses shuts out cannabis companies from taking advantage of its benefits, reflecting the continued federal illegality of marijuana. Prior to the recent boom in sales, the industry had been in financial turmoil, with many companies laying off workers and scuttling acquisitions as they ran short on cash. “I'm frustrated Senate Republicans refused to allow us to include them in this legislation, but we aren't giving up," Sen. Patty Murray (D-Wash.) said Wednesday.

In addition, some medical experts question the wisdom of allowing uninhibited access to marijuana during a massive public health crisis. They worry that customers flocking to pot shops could spread the virus, that stoned customers will engage in risky behavior and that smoking pot will worsen the lung damage for people who do become infected. “If you keep the pot stores open, you're just adding fuel to the fire,” said Karen Randall, an emergency room doctor in Colorado. “You're having a whole bunch of people who are trashing their lungs.”...

The federal government said Thursday that a staggering 3.3 million people applied for unemployment benefits last week. While the cannabis industry can’t do much to remedy that bloodletting, some companies are looking to hire people who have recently lost their jobs. Harborside — which operates three shops in the Bay Area — found itself suddenly understaffed as delivery requests increased by 45 percent and phone calls exploded from around 100 to 8,000 per day.... Harborside has hired 10 employees in the last few weeks — some of whom were directly laid off as a result of the coronavirus — and plans to hire at least six more. The largest increase was in their delivery fleet, going from four drivers to 10.

And they’re not alone. “Two and a half weeks ago, our sales just exploded,” said Zachary Pitts, CEO of California cannabis delivery service Ganja Goddess. “People are leaning on delivery more now … even though storefronts are still open in California.” Pitts estimated that he’s increased his workforce by about 15 percent in recent weeks, and is working on hiring more. The company has suspended normal vetting processes and is instead relying on trusted referrals....

As states move to declare marijuana an essential business, the gulf between state and federal policy has never been wider. Congress is poised to enact a $2 trillion stimulus package this week, but the cannabis industry will not see a cent. “In the same way that cocaine dealers in the United States who are suffering under Covid-19 are not going to be eligible for relief under the stimulus bill, cannabis companies won't either,” said Hudak of the Brookings Institution. “Illegal businesses do not access legal funding.”

The cannabis industry generated $15 billion in sales last year and employs 340,000 people. Employers and workers pay federal taxes, and are required to comply with other coronavirus-related measures such as paid sick leave coverage. But for cannabis companies to access assistance made available through the stimulus package, Congress or the administration would need to dictate their inclusion. A spokesperson for Sen. Jeff Merkley (D-Ore.) said he wants to include such a provision in a future coronavirus aid package. Similarly, Murray said she is “exploring what can be done in the upcoming appropriations process to help them through this crisis and beyond."

March 27, 2020 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, March 26, 2020

Noticing post-reform pattern of federal marijuana prosecutions ... and realizing what it really tells us about the modern drug war

Screen-Shot-2020-03-24-at-7.30.34-AM-1024x668Over at my sentencing blog, I noted here that the US Sentencing Commission this week released its national yearly data on federal sentencing for Fiscal Year 2019.  I am extremely pleased to see that Kyle Jaeger at Marijuana Moment has already drilled into this data in this post titled "Feds Prosecuted Even Fewer Marijuana Cases In 2019 As More States Legalize, New Data Shows."  Here are excerpts:

Federal prosecutions for marijuana trafficking declined again in 2019, and drug possession cases overall saw an even more dramatic decline, according to a new report published by the U.S. Sentencing Commission on Monday.

While drug cases still represent the second most common category of crimes in the federal criminal justice system, the data indicates that the bulk of those instances are related to methamphetamine trafficking, which has steadily increased over the past decade.

But for marijuana, a different kind of trend has emerged.  As more states have moved to legalize cannabis, federal prosecutions have consistently declined since 2012.   To illustrate the shift, marijuana trafficking cases represented the most common drug type that was pursued in 2012, with about 7,000 cases.  As of fiscal year 2019, those cases are now the second least common, with fewer than 2,000 cases.

Notably, the year of that peak, 2012, was when Colorado and Washington State became the first to legalize for recreational purposes.  Though the report doesn’t attempt to explain why cannabis cases are on the decline, advocates have postulated that state-level marijuana reform has helped curb illicit trafficking by creating a regulated market for consumers to obtain the products. “Twenty-five percent of the public now live in jurisdictions where the sale of marijuana to adults is legal,” Justin Strekal, political director of NORML, told Marijuana Moment. “Of course there will be a corresponding drop in the number of illegal sales.”

Another possibility is that evolving public opinion and state policies have contributed to a shift in perspective among prosecutors, who may no longer wish to prioritize enforcing cannabis prohibition in the era of legalization.  While all marijuana sales — even in states with legalization laws — remain federally prohibited, the Trump administration has in practice continued the Obama-era approach of generally not interfering with the implementation of local policies even though then-U.S. Attorney General Jeff Sessions formally rescinded a memo on the topic from the prior administration.

In any case, the new U.S. Sentencing Commission report also shows a broader decline in drug possession cases in general. In fact, the most significant reduction in crime category for 2019 was drug possession, which fell from 777 federal cases the previous year down to 563 — a 28 percent drop....  While marijuana trafficking cases decreased, the average sentence for a conviction increased by two months, from 29 to 31.  Overall, drug trafficking prosecutions did increase by about 1,000 cases in 2019, though again that’s largely attributable to an increase in methamphetamine-related prosecutions.

This discussion of new federal data — particularly the notion that state-level marijuana reforms "helped curb illicit trafficking by creating a regulated market for consumers to obtain the products — elides the important reality that ALL state-legal marijuana stores are stilled engaged in "illicit trafficking" under federal law.  I stress this point because there are more than 10,000 federally-illegal (and state-licensed) marijuana businesses in just the states of California and Oklahoma alone.  Save for limits in a spending rider (which Prez Trump has sought to disavow), the US Department of Justice could decide to prosecute many thousands of the out-in-the-open marijuana dealers (most of whom have given states all their marijuana dealing plans in writing in order to get a state license).

I make this point because I mean to stress that the major decline in federal marijuana prosecutions over the last decade does not demonstrate that there are fewer federal marijuana crimes taking place in the US.  Rather, it seems clear that there are now many more, and many more obvious, federal marijuana crimes taking place in the US, and there is also reason to fear that "fully illicit" marijuana activity (dealing that does not even comply with state laws) may not be in decline in any way.  And yet we see this marked decline in federal marijuana prosecutions simply because federal prosecutors, quite soundly in my view, simply believe it is an ever-less-good use of their time to be prosecuting all the marijuana offenders who continue to grow their drug-dealing businesses in plain view.  

March 26, 2020 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Wednesday, March 4, 2020

Noting how blanket federal prohibition serves to thwart continued progress of medical marijuana reforms

This new Roll Call article, headlined "States turn to unenforced federal law to slow medical marijuana legalization," effectively reviews how federal prohibition still serves to impact medical marijuana reforms efforts in a number of states.  I recommend the lengthy article in full, and here are excerpts:

Since 2014, Congress has protected patients and cannabis programs from federal marijuana prosecutions in states that allow it for medical use. Medical marijuana’s unique legal status involves a little-known provision called the Rohrabacher-Farr amendment that Congress renews every year in spending laws. It says the Justice Department cannot use federal funds to prevent states from implementing their own medical marijuana laws.

Yet marijuana’s continued status as a Schedule I substance — the most severe drug category — remains fodder for those opposed to legalizing medical marijuana in other parts of the country.... In states considering the issue this year, including Alabama and Tennessee, opponents continue to cite the drug’s Schedule I status.

In Tennessee, House Speaker Cameron Sexton, a Republican, said in January that he won’t take up medical marijuana because “it’s against federal law.” A commission created by the Alabama Legislature to advise lawmakers on cannabis policy last year recommended that the state adopt a medical marijuana plan this session, and it published draft legislation to do so. But opponents on the commission said the top reason for their objections was “the fact that marijuana remains a Class I Controlled Substance under state and federal law.”

Alabama Attorney General Steve Marshall inflamed debate further in January when he wrote a letter in opposition to legislators. “State laws that allow any use of marijuana, medical or recreational, are in direct conflict with duly enacted and clearly constitutional law,” Marshall wrote. “Thus, state marijuana statutes enacted in violation of the law are damaging to the law itself.”...

Such arguments underscore why Congress is considering a number of bills to deschedule marijuana entirely or reschedule it in order to better study it. They face long odds in the Senate, which has yet to move on a House-passed bill that is limited to offering protections for banks that do business with marijuana companies.

But advocates for legalization say federal prohibition is a red herring, and that states shouldn’t have to comply with a federal drug law the Drug Enforcement Administration is barred from enforcing. “States are authorizing conduct that is prohibited under federal law, so at first blush, I can see how this could be confusing and surprising, but at this point, two-thirds of the country have implemented comprehensive medical marijuanalaws,” says Karen O’Keefe, state policy director for the Marijuana Policy Project, a pro-legalization advocacy group that lobbied for the Rohrabacher-Farr amendment. The rider halted most raids involving medical marijuana in states with legalization.

The patients and providers who cultivate, process and dispense the cannabis these patients rely on in these states for the treatment of debilitating illness do not have to fear federal charges as long as they are in compliance with state law, says Sean Khalepari, regulatory affairs coordinator for the pro-medical marijuana group Americans for Safe Access.

But the unusual nature of the provision is not well understood, some say.... Although the amendment serves as a shield against federal prosecution, “I think it can be misunderstood that this rider does not in and of itself legalize medicinal marijuana at the federal level,” says Jeffrey Vanderslice, who worked as an aide to Rohrabacher in 2014. Since the Justice Department technically retains the ability to prosecute medical marijuana — even in states that have legalized it, if a business or individual doesn’t comply with state law — advocates are hoping for more certainty on the federal level eventually.

Meanwhile, the Trump administration’s interpretations and actions have contributed to the confusion. In 2018, the administration rescinded guidance by the Obama administration known as the Cole memorandum, which directed Justice to deprioritize prosecuting state-legal marijuana businesses. Trump’s reversal stoked worry and confusion among supporters of legalization.

The office of the attorney general has since turned over from Jeff Sessions, a severe critic of marijuana, to William Barr. Barr said during a Senate hearing in 2019 that he operates under the Cole memo, but leaves significant discretion to U.S. attorneys in each state. Meanwhile, the White House has sought the repeal of Rohrabacher-Farr in each of its budgets, including in Trump’s fiscal 2021 budget proposal. Congress has always bucked that recommendation.

March 4, 2020 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)