Wednesday, September 28, 2022
John Hudak has this interesting new piece over at Brookings discussing the continued failure of marijuana reform becoming a significant campaign issues in this year's congressional races. The piece is titled "Congressional candidates’ silence on cannabis reform," and is worth a full read. Here is how the piece starts and concludes:
Cannabis reform has grown in popularity with voters, activists, and state legislators; cannabis is now legal for medical use in 38 states and DC and for adult-use in 19 states and DC. Despite those advances in state level reforms and in the broader conversation nationwide, Congress has failed to pass a major piece of legislation addressing the issue, and many voters and activists wonder why.
One argument is that federal level officials — in the executive branch and in Congress — simply don’t care enough about the issue to address it. To consider this question, I included a coding about cannabis reform in Brookings Primaries Project in 2022. The Brookings Primaries Project examines the publicly stated views—via the websites and social media presence — of all candidates running in U.S. congressional primary races. We coded each candidate on a four-point scale: whether they supported legalization or decriminalization of cannabis, whether they supported medical legalization only, whether their position was complex or indecipherable, and whether they failed to mention the issue at all.
The results provide three general takeaways. First, primary candidates for Congress do not consider the issue important enough to elevate to be included on their website or on social media. Second, on average, candidates who do engage on the issue are at least not harmed by staking out a public position. Third, stark differences exist between Democratic primary candidates for Congress and Republican primary candidates for Congress....
It is clear that among all candidates, all Democrats, and all Republicans, taking no public position on cannabis was the most popular strategy during the 2022 congressional primaries. However, among candidates who chose to take a clear position on cannabis, Republicans were more likely to oppose legalization than support it, and the reverse is true for Democratic primary candidates who took a position on cannabis.
In sum, cannabis as a political issue has risen in importance over the past 25 years. As state legislatures and voters via referenda have enacted changes to cannabis laws, the issue has become more popular even in the halls of Congress. However, cannabis reform advocates’ frequent stupefaction at the lack of progress at the federal level bumps up against a stark reality. Most candidates for federal office do not see cannabis as an issue prominent enough to discuss, and deep partisan differences still remain among elected officials, even as support for cannabis in the general public has exploded in recent years. And the true motivator for a member of Congress to take or change a position — whether voters hold their feet to the fire over an issue — has not yet become a reality in the vast majority of Congressional races across the United States.
September 28, 2022 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)
Thursday, September 8, 2022
Some days it seems there is now way too much marijuana news and commentary. Despite the lack of any federal legislative reforms at all, and relatively little major change at the state level, each day seems to bring dozens of headlines and stories in the cannabis space vying for my attention. And yet, even during busy times and lots of noise, a few headlines and stories break out to garner my attention. Today seems to be such a day via these stories and commentaries breaking through (to me, at least):
From The Hill, "Liberals push Biden on marijuana reform ahead of midterm momentum"
From The Hill, "America needs to get real about high-potency marijuana"
From the Los Angeles Times, "The reality of legal weed in California: Huge illegal grows, violence, worker exploitation and deaths"
From Marijuana Moment, "Senate Marijuana Banking Sponsor Gives Details About Forthcoming ‘SAFE Plus’ Reform Package"
From the Minnesota Reformer, "Minnesota’s Black marijuana users far more likely to face arrest than white ones"
September 8, 2022 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Wednesday, August 17, 2022
Split First Circuit panel holds dormant Commerce Clause applies to federally illegal marijuana businesses
In a notable ruling today in Northeast Patients Group v. United Cannabis Patients and Caregivers of Maine, No. 21-1719 (1st Cir. Aug. 17, 2022) (available here), a split First Circuit panel applied the dormant Commerce Clause to a provision of Maine's Medical Marijuana Act. Here is how the majority opinion gets started:
This appeal concerns whether the Maine Medical Use of Marijuana Act, 22 M.R.S. §§ 2421-2430 (2009) ("Maine Medical Marijuana Act"), violates what is known as the dormant Commerce Clause of the United States Constitution by requiring "officers" and "directors" of medical marijuana "dispensar[ies]," id. § 2428(6)(H), operating in Maine to be Maine residents. The United States District Court for the District of Maine held that Maine Medical Marijuana Act's residency requirement does violate the dormant Commerce Clause, notwithstanding that Congress enacted the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., to "eradicate the market" in marijuana, see Gonzalez v. Raich, 545 U.S. 1, 19 n.29 (2005). The District Court concluded that is so, because the residency requirement is a facially protectionist state regulation of an interstate market in medical marijuana that continues to operate even in the face of the CSA. We affirm.
Here is how the dissent by Judge Gelpi starts:
I respectfully dissent from the affirmation of the district court's opinion. I agree that Maine's residency requirement, that "[a]ll officers or directors of a dispensary must be residents of this State" set forth at 22 M.R.S. § 2428(6)(H), incontestably constitutes protectionist legislation. Indeed, at oral argument, counsel for Defendant-Appellant Kristen Figueroa conceded as much. Moreover, Figueroa does not assert that the measure could meet the strict scrutiny standard to which protectionist legislation is ordinarily subject. Indeed, the Supreme Court and this court have routinely invalidated similar protectionist legislation in markets ranging from liquor store licensing to egg products. See, e.g., Tenn. Wine & Spirits Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2457 (2019); United Egg Producers v. Dep't of Agric., 77 F.3d 567, 57172 (1st Cir. 1996). Following this caselaw, the majority affirms the district court by concluding that Maine's measure fails under the dormant Commerce Clause, because defendants have not satisfactorily demonstrated Congress's "unmistakably clear intent to allow otherwise discriminatory regulations," United Egg Producers, 77 F.3d at 570 (citing Wyoming v. Oklahoma, 502 U.S. 437, 458 (1992)), or demonstrated that Congress has otherwise consented to such protectionist legislation. In the ordinary course, in an ordinary market, I would agree that such a measure is unconstitutional under well-trodden dormant Commerce Clause principles and caselaw.
But the national market for marijuana is unlike the markets for liquor licenses or egg products in one crucial regard: it is illegal. Congress in 1971 enacted the Controlled Substance Act (CSA) pursuant to its Commerce Clause powers, designating marijuana a Schedule I controlled substance. See 21 U.S.C. § 841; id. § 812(c)(Schedule I)(c)(10); Gonzales v. Raich, 545 U.S. 1, 22 (2005). Under the CSA, it is a crime "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1). It is here that I part ways with the majority, because I disagree that the test we have developed for the mine-run of dormant Commerce Clause cases apply automatically or with equal vigor when the market in question is illegal as a matter of federal law. As such, I do not believe that the United Egg Producers test -- which, prior to today, we have only ever applied in cases involving legal markets -- extends to national markets that Congress has expressly made illegal. Instead, I start from the premise that we should vindicate the principles that animate the dormant Commerce Clause -- and I conclude that the same constitutional precepts that led us to articulate the United Egg Producers test counsel against its application here.
Wednesday, August 10, 2022
Effective coverage of federal government's efforts to defend federal gun prohibition for medical marijuana users
The folks at Marijuana Moment now have two lengthy posts discussing the recent filings in a lawsuit challenging the federal gun prohibitions applicable to medical marijuana users. Here are links to the stories and excerpts:
The Department of Justice asked a federal court on Monday to dismiss a lawsuit that seeks to overturn a policy blocking medical marijuana patients from buying or owning guns. The filling is partly premised on the government’s position that it would be too “dangerous to trust regular marijuana users to exercise sound judgment” with firearms.
In making its case for dismissal, DOJ also drew eyebrow-raising historical parallels to past gun bans for groups like Native Americans, Catholics, panhandlers, those who refuse to take an oath of allegiance to the government and people who shoot firearms while drunk....
At a top level, the Justice Department said the gun rights are generally reserved for “law-abiding” people. Florida might have legalized medical cannabis, but the department said that doesn’t matter as long as it remains federally prohibited.
The Justice Department’s characterization of medical marijuana patients as uniquely dangerous and unfit to possess firearms in its new response to a lawsuit exposed an “insulting” and antiquated perspective, Florida Agriculture Commissioner Nikki Fried told Marijuana Moment on Tuesday....
The Biden administration’s Justice Department didn’t just hold the line by denying the therapeutic benefits of marijuana, it also made the case that people who use cannabis would be too “dangerous to trust” to possess firearms. The memo’s reefer madness-era rhetoric has dismayed advocates and amplified frustrations over the president’s unfulfilled promises to enact modest cannabis reforms.
“I find it very insulting,” Fried said of the DOJ’s response. “You’re calling patients that have cancer that are using medical marijuana dangerous. You’re telling veterans who are using medical marijuana [that they’re] dangerous. I think that they missed the ball here — and it’s very disconcerting that this is the direction that they took.”
“There’s so many of us for years — for decades — who have been fighting against this stereotype of marijuana users,” the commissioner, who is running in a Democratic gubernatorial primary for a chance to challenge incumbent Gov. Ron DeSantis (R) in November, said. “To see the Department of Justice put it down in a 40-page memo defending their motion to dismiss is very disappointing.”
Tuesday, July 26, 2022
Over at my sentencing blog, I have spotlighted here what seems to be a truly historic congressional hearing taking place this afternoon, July 26, 2022, before the Subcommittee on Criminal Justice and Counterterrorism of the US Senate Judiciary Committee. The hearing is titled "Decriminalizing Cannabis at the Federal Level: Necessary Steps to Address Past Harms," and the scheduled witnesses all seem likely to have something notable to say. One of the scheduled witnesses is Weldon Angelos, and he previewed his testimony via this new Marijuana Moment commentary that is worth reading in full. Here are excerpts:
Tuesday will be a historic day in the U.S. Senate. Members of a key subcommittee have invited me to testify at a hearing on cannabis reform and the harms of criminalization — a first-of-its-kind meeting in a chamber where marijuana policy and the lifelong consequences of prohibition have been swept under the rug for far too long.
My message to the panel will be simple: My name is Weldon Angelos, and I am living proof of the benefits of second chances. But I’m far from the only person deserving of relief. I plan to remind members that inaction will only continue to breed injustice, and there’s no more time to waste.
The topic of the hearing — the critically important issue of federal cannabis decriminalization — affects the lives of millions of Americans, from those who have interacted with the criminal justice system, to patients and veterans who get relief from cannabis....
National cannabis reform must include: (1) the release of federal cannabis offenders; (2) a true expungement and sealing of records; and (3) the creation of meaningful opportunities for the formerly incarcerated upon release.
With a comprehensive approach to cannabis reform, we could immediately assist many of the nearly 3,000 people serving federal prison time for cannabis offenses, as well as the tens of thousands of individuals whose lives and futures are haunted by records of cannabis arrests, convictions, and sentences. Further still, Congress must provide the resources to address state-level cannabis arrests, convictions, and sentences, since each year hundreds of thousands of individuals become entangled in state criminal justice systems despite cannabis being legal in some form in 37 states, three U.S. territories, and the District of Columbia.
This is why I was excited and grateful to see the Cannabis Administration and Opportunity Act introduced last week. This bill would deschedule cannabis, helping to end the harmful criminal justice impacts of prohibition and supporting the expungement and resentencing of cannabis convictions, all while allowing states the right to decide the direction their jurisdiction will take.
Congress must also address the residual effects of cannabis convictions. Those with felony convictions can be politically disenfranchised, losing the right to vote or to serve on juries, for instance. They lose other civil liberties like the right to possess a firearm legally, as well as lawful opportunities afforded to others in education and in public housing, among other things. Cannabis convictions adversely impact credit scores too, and they can impede or entirely prevent employment, creating permanent barriers to true participation in society.
Even with a full presidential pardon, I still feel the stranglehold of my cannabis conviction. In my home state of Utah, my prior conviction bars me from participating in the state’s legal medical cannabis industry. The state refuses to issue licenses to individuals with felony cannabis convictions, even with a full presidential pardon. In California — the other state I call home — my criminal history prevents me from accessing credit, capital, and financing despite having engaged in conduct that is now legal throughout the jurisdiction....
I realize that I am one of the lucky ones. I am no longer inmate 10053-081. I am Weldon Angelos, a reform advocate with the immense privilege of being invited to testify before a Senate panel. But my fortune is not universal. I am reminded of all those left behind in prison — those who are still serving unjust sentences — many of whom are Black and Hispanic men and women who continue to serve time while predominantly white CEOs and entrepreneurs make millions from the recreational and medical cannabis industries around the country. The cannabis industry should be able to grow and thrive, but not at the expense of those who are still incarcerated.
And as we think about federal cannabis reform and ensure the release of those who are still serving, we must also provide opportunities and resources to support reentry and create a pathway to expungement to stop the collateral consequences.
July 26, 2022 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)
Monday, July 25, 2022
I am pleased to spotlight another great Drug Enforcement and Policy Center (DEPC) event that is part of our summer 2022 Cannabis Regulatory Deep Dive. (The first event in this series on "Interstate Commerce" can be watched at this YouTube link.). This event is scheduled for August 17 at 12noon and is titled "Not a SAFE Bet: Equitable Access to Cannabis Banking." This is how this event is described on this webpage (where you can register):
According to members of the Cannabis Regulators of Color Coalition, the SAFE Banking Act, as written, is not a safe bet to achieve fair and equitable access to financial services for those in the cannabis industry.
Please join us for another Cannabis Regulatory Deep Dive as our panel of experts shares their analysis of the SAFE Banking Act, why it would fall short of its goals, and recommendations to improve fair access to cannabis banking as detailed in their soon-to-be released paper, Not a SAFE Bet: Equitable Access to Cannabis Banking.
Cat Packer, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University
Rafi Aliya Crockett, Commissioner, Washington, D.C. Alcoholic Beverage Control Board
Dasheeda Dawson, Cannabis Program Manager, City of Portland, Oregon
Shaleen Title, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University
Thursday, July 21, 2022
As reported in this new Politico article, "Senate leaders are introducing sweeping legislation Thursday meant to lift federal prohibitions on marijuana more than 50 years after Congress made the drug illegal." Here is more about a long-in-development, unlikely-to-become-law marijuana reform bill:
Senate Majority Leader Chuck Schumer’s Cannabis Administration and Opportunity Act would decriminalize weed on the federal level and allow states to set their own marijuana laws without fear of punishment from Washington.
The bill has been a long time coming — Schumer, along with Sens. Ron Wyden (D-Ore.) and Cory Booker (D-N.J.) proposed a discussion draft more than a year ago — and its odds of passing in this Senate are slim. But the legislation will shape the conversation around cannabis legalization going forward and portions of it are likely to find their way into other bills that could pass before the end of the year.
The legislation includes both Democratic and Republican priorities: It expunges federal cannabis-related records and creates funding for law enforcement departments to fight illegal cannabis cultivation. It also establishes grant programs for small business owners entering the industry who are from communities disproportionately hurt by past drug laws, requires the Department of Transportation to research and develop a nationwide standard for marijuana-impaired driving, and restricts the marketing of cannabis to minors....
While marijuana legalization has spread rapidly across the U.S. over the past decade, Capitol Hill has not transitioned as quickly. Nineteen states now allow anyone at least 21 years old to possess and use the drug, and 37 states have established medical marijuana programs. National polls have consistently shown that roughly two-thirds of Americans back marijuana legalization, and support is even higher among younger voters.
But the votes aren’t yet there to pass Schumer’s bill on Capitol Hill. That’s in part because many lawmakers from states with legal markets don’t yet support substantial changes to federal law. Democratic Sen. Jon Tester, for example, represents a state where weed is legal — Montana — and says he does not support federal decriminalization. A handful of other Democrats told POLITICO that they are against legalization or are undecided, including Sens. Jeanne Shaheen (D-N.H.), Joe Manchin (D-W.Va.) and Bob Casey (D-Pa.). Schumer would need all Democrats, plus ten Republicans, to get the bill over the finish line.
Cannabis legalization advocates have had success in the past framing it with Republicans as a states’ rights issue, but some pro-decriminalization Republicans will likely be unhappy with the bill’s expungement of cannabis-related criminal convictions and its equity grant provisions.
Further complicating matters is that the House has twice passed its own sweeping marijuana legalization package, known as the Mariuana Opportunity, Reinvestment and Expungement Act. That legislation does not include much of the regulatory structure that’s part of the Senate bill, and also has a different tax rate....
Instead, some Democrats and Republicans are considering a smaller cannabis bill later this year that could see one or more provisions from the CAOA added to the SAFE Banking Act, a more widely-supported bill that would make it easier for banks to offer financial services to cannabis companies. That plan is still in the discussion stage and nothing formal has been decided.
Many of the changes added to the final Senate bill echo requests regularly made by Republicans. Law enforcement grants, a nationwide youth prevention campaign and traffic safety research all correspond to concerns that legalization skeptics have frequently raised. Schumer has met with Republicans — including Rep. Dave Joyce (R-Ohio), a co-chair of the Congressional Cannabis Caucus — in recent months to discuss where the two parties could potentially come together on weed legislation. Whether the changes will be enough to get enough Republicans on board, however, seems doubtful at this point.
Marijauna Moment's extensive coverage of this long-awaited news can be found here, and includes these additional details (and much more):
[T]he main thrust of the now-filed 296-page legalization bill closely resembles that of the earlier version, which weighed in at a mere 163 pages—though the senators highlighted a number of changes, which generally expand on the draft.
For example, there are revisions concerning cannabis industry workers’ rights, a federal responsibility to set an impaired driving standard, banking access, expungements and penalties for possessing or distributing large quantities of marijuana without a federal permit.
The bill would also create a new federal definition for hemp that would increase the permissible THC by dry weight to 0.7 percent from the current 0.3 percent, but also make it so all THC isomers would be included in that total, not just delta-9 THC.
July 21, 2022 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Saturday, July 16, 2022
The back end of this week brought some news from Congress regarding federal marijuana reform efforts. Marijuana Moment has the essential news and helpful context in two lengthy pieces, which are linked below and briefly excerpted:
The U.S. House of Representatives on Thursday approved several marijuana reform amendments as part of a large-scale defense bill, including proposals to protect banks that work with state-legal cannabis businesses and allow U.S. Department of Veterans Affairs (VA) doctors to issue medical marijuana recommendations....
What remains to be seen is which, if any, of these amendments makes it through conference after the Senate advances its version of NDAA. The chamber has generally been viewed as a barrier to enacting drug policy reform, especially with Republican minority leadership frequently challenging amendment germaneness.
The introduction of a long-awaited Senate bill to federally legalize marijuana is imminent, with two Senate sources telling Marijuana Moment on Thursday that the legislation could be filed “as early as next week.”
It’s been a year since Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) first released a draft version of comprehensive legislation to end federal cannabis prohibition and promote social equity in the industry. And on Thursday, Bloomberg reported that the bill’s introduction would be coming next week....
The timeline for the introduction of CAOA has been repeatedly pushed back as leadership has worked to gather input on various provisions and build bipartisan buy-in.... Details about any changes to the bill since it was released last year are still being heavily guarded. But it’s expected to contain the key components: removing cannabis from the Controlled Substances Act, imposing a federal tax on marijuana sales, promoting equity in the industry and providing an avenue for relief for those who have faced federal cannabis convictions.
Once the measure is introduced, its path to passage is still murky. There’s a fair level of skepticism about the prospects of reaching the 60-vote threshold needed to pass CAOA through the Senate.
Wednesday, July 6, 2022
Marijuana Moment has effective coverage to two notable new letters sent recently to the Biden Administration. Here are headlines, links and the ledes:
A coalition of current and former marijuana regulators is urging the Justice Department to instate updated guidance to federal prosecutors on cannabis enforcement priorities as an interim step while Congress considers broader legislation to end prohibition.
Ten members of the Cannabis Regulators of Color Coalition (CRCC) sent a letter to top DOJ officials, as well as the president and vice president, on Tuesday that addresses the urgent need to reinstate something like Obama-era guidance that generally recommended that prosecutors use discretion in marijuana-related enforcement for state-legal activities.
As the the coalition points out in the the letter, which was shared exclusively with Marijuana Moment, the 2013 guidance that was later rescinded by then-Attorney General Jeff Sessions during the Trump administration came before any states had launched retail cannabis sales. Now, with 19 states that have legalized for adult-use and the vast majority permitting some level of medical marijuana access for qualified patients, there’s a need to bring back something akin to the so-called Cole memo, CRCC said.
The updated memo should advise federal prosecutors against going after people for “crimes related to cannabis when those activities accord with relevant state law and a reasonable set of regulatory principles intended to promote safety and fairness,” the letter says.
A coalition of six U.S. senators are renewing their call for the Biden administration to deschedule marijuana and grant mass pardons for people with federal cannabis convictions, calling the Justice Department’s response to an earlier request for action “extraordinarily disappointing.”
In a letter that was sent to President Joe Biden, Attorney General Merrick Garland and Health and Human Services (HHS) Secretary Xavier Becerra on Wednesday, the senators made a dual request: first, that the attorney general work independently to remove cannabis from the Controlled Substances Act (CSA) and second, that the president issue mass clemency for people with non-violent federal marijuana convictions.
Sens. Elizabeth Warren (D-MA), Bernie Sanders (I-VT), Cory Booker (D-NJ), Ron Wyden (D-OR), Ed Markey (D-MA) and Kirsten Gillibrand (D-NY) signed the new letter. The senators said that DOJ took six months to respond to a previous October 2021 letter urging the attorney general to use his authority to unilaterally start the process of federally descheduling marijuana. The “half-page response” was “extraordinarily disappointing,” they wrote.
Friday, July 1, 2022
Marijuana Moment has this lengthy new article under the headline "It’s Up To Biden To Direct Mass Clemency For Marijuana Cases, U.S. Pardon Attorney Says." Of course, in every administration and for every type of federal defendant, grants of clemency are "up to" the President. Nevertheless, this piece serves as a useful review of the state of debate over clemency for federal marijuana offenders, and here are excerpts (with lots of links from the original):
It’s up to President Joe Biden to initiate a process of granting mass clemency for people with non-violent federal cannabis convictions, the recently appointed U.S. pardon attorney told Marijuana Moment on Thursday.
As a general practice, the Justice Department’s pardon office looks as petitions for relief on an individualized basis and then makes recommendations to the president, Pardon Attorney Elizabeth Oyer said during an event hosted by the Justice Roundtable, a coalition of criminal justice reform organizations.
That said, a categorical pardon for people with federal cannabis records is still possible if the president takes action, the former public defender, who was appointed by Attorney General Merrick Garland in April, said. “Right now, the Office of the Pardon Attorney reviews every individual clemency application on an individualized basis — and that could change at the direction of the president,” Oyer said in response to a question from Marijuana Moment about the feasibility of Biden issuing mass pardons and commutations for marijuana convictions in the way Presidents Gerald Ford and Jimmy Carter did for people who avoided the draft during the Vietnam War. “Currently, what we do is we look at cases individually for the most part and not categorically,” Oyer said. But she left the door open that the president could issue a directive otherwise if he wanted to....
The pardon attorney said that when her office makes clemency recommendations, it does take into account “broad categories of policy objectives or criminal justice reform goals or racial justice objectives,” and marijuana cases represent an example of such a category because they have “some sort of cohesive common characteristics.”
“So we’re absolutely taking into consideration those categories and those policy objectives and those racial equity objectives, but we don’t look at cases in a batch without individualized review,” Oyer said. “We do look at every single case individually.”
At the event, the pardon attorney also offered advice to advocates on filing clemency petition applications and addressed the “backlog” of cases under review.
Late last year, there were signals that the administration might be moving toward clemency for certain people with federal convictions. The federal Bureau of Prisons (BOP) started asking eligible individuals to get the process started by filing out clemency applications.
Biden has received about a dozen letters from lawmakers, advocates, celebrities and people impacted by criminalization to do something about the people who remain behind federal bars over cannabis. After months of inaction, some members of Congress like Sen. Elizabeth Warren (D-MA) have even sent follow-up letters demanding a response.
Among those pushing for reform is Weldon Angelos, who received a president pardon from Trump in 2020 and has since become a key advocate for criminal justice reform who has worked with both the Trump and Biden administration of furthering relief. “It’s up to President Biden to honor his campaign promise and instruct those involved in the clemency process to prioritize cannabis cases,” Angelos told Marijuana Moment on Thursday. “There is no other group more deserving of relief than those who are incarcerated for something that society no longer considers criminal.”...
At a House Judiciary Committee oversight hearing last month, Chairman Jerrold Nadler (D-NY) and other Democratic lawmakers stressed the need for reforming the federal clemency process, calling for applications to be streamlined to make it easier for people with non-violent federal drug convictions to get relief.
Late last year, a coalition of congressional lawmakers introduced the Fair and Independent Experts in Clemency (FIX Clemency) Act, a bill that would take clemency review away from the Justice Department and instead establish an independent board appointed by the president.
A report published by the Congressional Research Service (CRS) last year affirmed that the president has it within his power to grant mass pardons for cannabis offenses. It also said that the administration can move to federally legalize cannabis without waiting for lawmakers to act.
Friday, June 17, 2022
As it became more and more clear in recent months that there weren't the votes in the Senate needed to pass any of the major federal marijuana legalization bills, federal reform discussions started to grow a bit boring. Whether and how the SAFE Banking bill might get enacted seemed to be the only story afoot, though that still remains a lively and important matter. But just in the last few days, a lot of notable news from both inside and outside the Beltway has started to make the federal reform landscape a lot more interesting for a lot of different reasons. As always, Marijuana Moment has these stories well covered, and here are links to its coverage:
Developments Inside the Beltway
Developments Outside the Beltway
Monday, June 13, 2022
"Capital Expenditure and Acquisition in Conventional Agriculture and Cannabis: A Comparative Analysis"
I am pleased to report that I am almost fully caught up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center. I continue to relish the he chance to highlight great work by OSU law students and recent graduates, and the title of this post is the title of this paper authored by Steve Nosco who recently graduated from The Ohio State University Moritz College of Law. Here is its abstract:
Federal laws prohibiting the possession, production, and use of Cannabis create significant operational challenges for state-compliant Cannabis companies. One of the largest challenges is acquiring the initial capital required for any new business to become self-sustaining and profitable. Without traditional sources of capital, namely credit from commercial institutions or government lenders, only individuals with access to significant private funds can become entrepreneurs in this burgeoning industry. In the face of Federal inaction to solve this well-documented problem, States can, and should, take on a leading role. This Paper explores existing federal programs for traditional agricultural lending and suggests how states can emulate these programs for Cannabis businesses within their jurisdictions.
The question in the title of this post is prompted by this interesting Marijuana Moment article headlined "New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes." Here are some of the intriguing particulars from an extended piece worth reading in full:
Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year. But multiple sources tell Marijuana Moment that issues under consideration go further than the banking and expungements reforms that were at the center of the public discussion that has emerged.
The dueling pushes for comprehensive legalization and incremental reform — a source of tension among advocates, lawmakers and industry insiders over many months — may actually result in something actionable and bipartisan by the end of the current Congress, those familiar with the bicameral negotiations say. That said, no deal is set in stone and talks are ongoing.
In addition to the banking and expungements proposals that made waves when discussed publicly at a conference on Thursday by two key House lawmakers, there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform....
Reps. Ed Perlmutter (D-CO) and Dave Joyce (R-OH) first publicly disclosed that there were discussions about crafting a bipartisan cannabis package at an International Cannabis Bar Association conference on Thursday, with Joyce revealing a recent meeting he had about the idea with Schumer.
Perlmutter, sponsor of the Secure and Fair Enforcement (SAFE) Banking Act, said that his legislation to safeguard financial institutions that work with state-legal marijuana businesses would be part of the package under consideration, but he also said at the time that members are interested in including Joyce’s Harnessing Opportunities by Pursuing Expungement (HOPE) Act to incentive state and local governments to expunge prior marijuana records, as well as proposals to provide veterans with access to medical cannabis and expand marijuana research.
But those four issues — banking, expungements, research and veterans — noted earlier by Law360, are only part of what’s on the table, sources who have been involved in the negotiations but requested anonymity, told Marijuana Moment on Friday. They stressed, however, that a deal has not yet been reached and talks are tentative at this point.
Another possible component that lawmakers have discussed including in the omnibus legislation would be a proposal to give cannabis businesses access to SBA loans and services that are available to every other industry. It’s a reform that Sen. Jacky Rosen (D-NV) in particular has consistently advocated for, including in a recent letter to the head of SBA.
While it’s not clear what stage the negotiations over the prospective marijuana package is at, a congressional source said that Rosen has spoken with Schumer about her interest in advancing the issue as he’s worked to navigate the congressional cannabis waters.
“These talks are very serious,” a source involved in criminal justice reform said. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur in our time in this space.”
To be clear, Senate leadership isn’t giving up the push for the broader CAOA legalization bill at this point. Nor is Perlmutter fully conceding passing the SAFE Banking Act on a sooner timetable, either as standalone legislation or as part of a large-scale manufacturing bill called the America COMPETES Act that’s currently in a bicameral conference committee....
Other sources told Marijuana Moment that they’ve been involved in conversations about potentially adding to the in-progress cannabis package language that would provide for record sealing of federal misdemeanor convictions, as would be prescribed under the standalone Clean Slate Act from Rep. Lisa Blunt Rochester (D-DE). It’s the type of reform that presumably would not compromise GOP support given the widespread recognition that offenses like simple possession should not lead to long-term consequences like the loss of access to housing and job opportunities.
June 13, 2022 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Who decides | Permalink | Comments (0)
Tuesday, June 7, 2022
"The Right Prescription: High Cost Savings and Other Benefits from Medicare and Medicaid Coverage of Medical Marijuana"
As I continue to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center, I continue to have the chance to highlight great work by OSU law students and recent graduates. The title of this post is the title of this paper authored by Nathan Ecker who recently graduated from The Ohio State University Moritz College of Law. Here is its abstract:
As medical marijuana usage continues to grow, coverage options under federal and private health insurance schemes have wilted away. Despite the expanding list of qualifying conditions for medical marijuana, patients seeking coverage under Medicare, Medicaid, or other governmental health insurance programs are consistently denied funding under these plans. Instead, patients are forced to either rely on “traditional pharmaceuticals” or incur the out-of-pocket expenses for medical marijuana. However, by expanding health insurance coverage to include medical marijuana, medical treatment options would expand, and the government would experience significant cost savings. This Paper examines the benefits to expanding Medicare and Medicaid coverage to encompass medical marijuana and suggests possible solutions for implementation.
June 7, 2022 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, June 6, 2022
The question in the title of this post is prompted by this recent news, as well covered by Marijuana Moment:
Several leading marijuana businesses and stakeholders are banding together to sue the federal government over what they believe to be unconstitutional policies impeding their operations, according to the CEO of one of the companies. And, he says, they’ve retained a prominent law firm led by an attorney who has been involved in numerous high-profile federal cases.
There have been various attempts to upend federal prohibition through the court system, but what makes this emerging effort especially notable is that the coalition of multi-state operators (MSOs) in the cannabis industry will apparently be represented by the firm Boies Schiller Flexner LLP.
David Boies, the chairman of the firm, has a long list of prior clients that includes the Justice Department, former Vice President Al Gore and the plaintiffs in a case that led to the invalidation of California’s ban on same-sex marriage, among others. The prominent firm’s willingness to take on the case from the marijuana industry would be a firm indicator that they see merit to the issue at hand.
Abner Kurtin, founder and CEO of Ascend Wellness Holdings, told Marijuana Moment in a phone interview on Friday that this is an “industry-wide effort,” with at least six major cannabis operators “favorably disposed” to joining the suits — one of which would focus on stopping the federal government from impeding intrastate cannabis commerce and another challenging a tax provision known as 280E that blocks the industry from taking tax deductions that are available to any other company.
Because these suits have not yet been filed, it is too early to predict whether or when they might impact federal policy or politics. But this posting from Andrew Smith at Harris/Bricken concludes with an effective accounting of why these suits are worth watching:
The lawsuits come at an opportune time, as many federal bills to legalize cannabis use at the federal level are stuck in either the House of Representatives or the Senate (see our recent summaries here and here). In addition, Kurtin mentioned that the lawsuits will be argued from a perspective of states’ rights, which will likely garner support from both political parties and appeal to the Supreme Court’s conservative majority.
Ultimately, the lawsuits to end cannabis prohibition represent another angle — which avoids the various hurdles of legislative approval — for federal prohibitions on cannabis to be overturned. Even if the litigation fails, it should exert even more pressure on Congress to Act. But the potential agreement of a highly regarded constitutional law firm to represent a coalition of major players in the cannabis world signals the potential merits of their claims.
Friday, May 20, 2022
Ninth Circuit panel holds (in trademark dispute) that "delta-8 THC products are lawful under the plain text of the Farm Act"
In this post a few month ago, I noted the growth of so-called delta-8 THC products and all the legal uncertainty around them. Yesterday, in an important ruling, a Ninth Circuit panel directly address question about the legality of delta-8 products under federal law. In AK Futures LLC v. Boyd Street Distro, LLC, No. 21-56133 (9th Cir. May 19, 2022) (available here), a trademark dispute prompted the panel to fully engage the arguments surrounding whether the 2018 Farm Bill served to legalize cannabis products without the standard delta-9 THC, and the opinion ultimately embraces the claim that delta-8 THC products derived from hemp CBD are legal products under federal law. Here are some key passages from the opinion:
[T]he parties dispute whether the possession and sale of delta-8 THC is permitted under federal law and, consequently, whether a brand used in connection with delta-8 THC products may receive trademark protection. AK Futures argues that delta-8 THC falls under the definition of hemp, which was legalized by the 2018 Farm Act. Boyd Street argues a contrary interpretation of the Act based on agency documents and congressional intent....
AK Futures argues the Farm Act’s definition of hemp encompasses its delta-8 THC products so long as they contain no more than 0.3 percent delta-9 THC. Plain meaning supports this interpretation.... Importantly, the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level....
The Farm Act’s definition of hemp does not limit its application according to the manner by which “derivatives, extracts, [and] cannabinoids” are produced. Rather, it expressly applies to “all” such downstream products so long as they do not cross the 0.3 percent delta-9 THC threshold....
Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress. If Boyd Street is correct, and Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake. Boyd Street’s intent-based argument is thus unsuccessful. With that, neither of Boyd Street’s counterarguments dissuade us from the conclusion that AK Futures is likely to succeed on the merits of its trademark claim.
Wednesday, April 20, 2022
Florida official sues feds, stressing Second Amendment and Rohrabacher-Farr Amendment, on gun purchasing limits for medical marijuana patients
This interesting NBC News piece reports on an interesting new federal lawsuit under the headline "Top Florida Democrat sues Biden administration over marijuana and guns: Agriculture Commissioner Nikki Fried's lawsuit targets a federal requirement that prohibits medical marijuana users from purchasing firearms." Here are excerpts:
Florida’s lone statewide elected Democrat, Agriculture Commissioner Nikki Fried, plans to sue the Biden administration Wednesday to try to block a federal rule that prohibits medical marijuana users from buying guns or maintaining concealed-carry permits. NBC News obtained a draft copy of the lawsuit.
The lawsuit targets a federal form that asks whether the gun buyer is an unlawful user of drugs and specifies that marijuana is illegal under federal law. A person allowed by the state to use marijuana must then check “yes,” which results in denial of the purchase. Lying by checking “no” runs the risk of a five-year prison sentence for making a false statement.
Fried, whose office oversees concealed weapons permits and regulates some aspects of medical marijuana, argues in her lawsuit that the form violates the Second Amendment rights of lawful medical marijuana patients and runs afoul of a congressional budget prohibition on federal agents’ interfering with state-sanctioned cannabis laws.
The suit has ramifications beyond Florida: At least 37 states have legalized medical marijuana, and recreational use is legal in 18 states, as well as Guam and Washington, D.C. The lawsuit is timed to land on April 20 — a nod to the slang reference of "420" for marijuana.
The suit is laden with political opportunity for Fried, who became the only Democrat elected statewide in 2018 when she ran on an unabashedly pro-cannabis platform. Two years before, 71 percent of Florida voters legalized medical marijuana, and polls show a majority favor legalization of recreational use. Florida also has 2.5 million concealed weapons permit holders, according to Fried’s office.
“Medical marijuana is legal. Guns are legal. This is all about people’s rights,” Fried said in a statement to NBC News. “And I don’t care who I have to sue to fight for their freedom.”
In her official capacity as agriculture commissioner, Fried is bringing the suit with three citizens who have been affected by the federal rules. It names the acting head of the Bureau of Alcohol, Tobacco, Firearms and Explosives and Attorney General Merrick Garland as defendants. While it’s rare for a Democrat to sue a Democratic administration during an election year, Fried said the issue can no longer wait because of the volume of complaints her office has received.
A spokesperson for ATF said the agency “can’t speculate on possible litigation or discuss any pending litigation” but implicitly blamed federal lawmakers for not changing the Controlled Substances Act and the Gun Control Act, which respectively regulate marijuana and firearms....
Fried’s former pollster, Keith Frederick, said any risks for her by bucking the Biden administration are offset because she’s raising her profile by embracing a popular issue. “You can have the best affordable housing plan possible, but once you get to point No. 2, people’s eyes glaze over, and they stop paying attention,” Frederick said. “People care about this.”
Support for medical marijuana and cannabis legalization cuts across party lines, as does opposition to the conflicting regulations in state and federal law. Gun rights are also generally popular in Florida.
Fried’s lawsuit notes that even conservative Supreme Court Justice Clarence Thomas groused in an unrelated case about the “half-in, half-out regime that simultaneously tolerates and forbids use of marijuana.” “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” Thomas said.
Other plaintiffs have tried and failed to sue the federal government over gun purchases. Fried’s lawsuit singles out the most recent lawsuit for presenting “a thin and stale factual record” that improperly ignored a federal study concluding that “marijuana use does not induce violent crime.” In addition, unlike the other unsuccessful federal case, Fried’s lawsuit argues that the form violates the so-called Rohrabacher-Farr Amendment, which prohibits ATF from enforcing anti-cannabis policies in states that have opted for legalization.
The full lawsuit is available at this link. The complaint runs 33 pages, followed by more than 200 pages of notable attachment.
Friday, April 15, 2022
Notable federal marijuana reform news with an interesting new bill while we further wait for an old one
The long-anticipated Senate bill to federally legalize marijuana will not be introduced this month, with Democratic leadership saying on Thursday that the timeline is being extended as they continue to work out various provisions “with the assistance of nearly a dozen Senate committees and input from numerous federal agencies.”
Senate Majority Leader Chuck Schumer (D-NY) has said on several occasions that the bill he’s been working on with Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) for many months would be formally filed by the end of April. That’s no longer the case, with the leader now saying the “official introduction” will take place sometime “before the August recess.”
A discussion draft of the Cannabis Administration & Opportunity Act (CAOA) was first unveiled last year, and advocates and stakeholders have been hanging on the leader’s words as they continue to push for an end to federal prohibition. Most recently, Schumer said last week that he and colleagues were in the process of reaching out to Republican senators to “see what they want” included in the legislation.
The timeline that Schumer previewed has apparently proved too ambitious — but the hope is that by taking extra time to finalize the measure, it will help the senators overcome what are currently significant odds stacked against them to reach a high vote threshold in the chamber, where Democrats hold just a slim majority and several members of the party have indicated that they’re not supportive of legalization.
A bipartisan group of congressional lawmakers filed a bill on Thursday that would direct the attorney general to create a commission charged with making recommendations on a regulatory system for marijuana that models what’s currently in place for alcohol.
Reps. Dave Joyce (R-OH), Hakeem Jeffries (D-NY) and Brian Mast (R-FL) are teaming up on what’s titled the Preparing Regulators Effectively for a Post-Prohibition Adult-Use Regulated Environment Act (PREPARE) Act — an incremental reform meant to inform comprehensive cannabis policy changes in the future.
The measure will “provide lawmakers across the ideological spectrum the opportunity to engage on cannabis reform by creating a fair, honest and publicly transparent process for the federal government to establish effective regulation to be enacted upon the termination of its 85-year prohibition of cannabis,” according to a summary from the sponsors....
Here’s what the new bill would accomplish:
Require the attorney general to establish a “Commission on the Federal Regulation of Cannabis” within 30 days of the bill’s enactment. The commission would be responsible for studying federal and state regulatory models for alcohol and make recommendations about how they could inform marijuana regulations. Among other things, the commission’s report must look at the impact of marijuana criminalization, particularly as it concerns minority, low-income and veteran communities.
The panel would also examine the “lack of consistent regulations for cannabis product safety, use and labeling requirements” as well as the “lack of guidance for cannabis crop production, sale, intrastate, interstate, and international trade.“ It would also need to make recommendations on how to remedy cannabis-related banking and research barriers as well as address measures to ensure the “successful coexistence of individual hemp and cannabis industries, including prevention of cross pollination of cannabis and hemp products.”
Members would further be mandated to study and make recommendations on “efficient cannabis revenue reporting and collecting, including efficient and tenable federal revenue frameworks.” The panel would be required to issue a report to Congress within 12 months.
I have come to believe that Senator Shumer's CAOA is essentially DOA in a Senate that may not now have even 50 votes in support of full marijuana legalization, let alone the 60 needed to get past a filibuster. But the new PREPARE Act already has bipartisan support, and it seems to only call upon the federal government to take a serious and sustained look at what kind of federal regulatory rules and structures would be preferable as marijuana reform in the states continues apace. In a well-functioning Congress, I think some version of the PREPARE Act could and should be a no-brainer and likely should have been enacted a number of years ago. In the current dysfunctional Congress, I fear that we need not seriously prepare for the passage of the PREPARE Act. But one can still dream.
Tuesday, April 12, 2022
Student presentation: "Putting Marijuana Back in the Bottle: FDA’s Role in Future Marijuana Regulation"
Continuing the Marijuana Law, Policy & Reform seminar students presenting on research topics of their choice. the second topic for this coming week's presentations will be focused on the role of the FDA. Here is how the student describes her take on the topic and some background readings:
So far, FDA has been fairly hands-off when it comes to the state-driven marijuana market even though marijuana falls under many of the agency’s statutory domains. “Marijuana” is a hot commodity as consumers can attest from the plethora of products purporting to contain marijuana derivatives. Many, if not all, of these products fall under FDA’s regulatory regime.
Although FDA has issued some warning letters regarding company actions within the marijuana space, the agency has not developed a consistent theme for regulation. Once it does, some state regulations may be preempted. This would throw the current regulatory landscape into question. Such entry may also change the dynamic of the marijuana industry. For example, as companies face federal regulation, entry into the marijuana space may become more expensive and push small sellers out of the market. Conversely, a dual marijuana marketplace may be established — one that establishes itself nationwide and another that attempts to maintain the current system by only selling intra-state.
FDA does not need to completely reinvent the wheel when it comes to marijuana regulation, although it statutorily may have to consider factors unique to current state regulations. However, given the history of introducing more robust regulations onto new industries, as FDA did with tobacco industry, systems states are already finding successful, and other nations’ marijuana schemes, there are many avenues for FDA to ensure the American public is protected from unsafe products without overly disrupting the current market.
Every year that the federal government declines to implement a regulatory scheme for marijuana products, states are creating their own processes — some more and some less permissive. This paper describes the statutory basis for FDA to regulate marijuana. It also describes how future FDA regulation might interplay with current state regulation or be preempted. Next, it analyzes possible industry challenges as federal regulation becomes more prominent. Finally, it recommends how FDA may enter the regulatory space in tandem with state regulation and avoid stifling an already robust market.
Law review article: "The Surprising Reach of FDA Regulation of Cannabis, Even after Descheduling"
Law review article (by own own Prof Zettler): "Pharmaceutical Federalism"
US Food & Drug Administration webpage: "FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD)"
April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Food and Drink, History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
This project attempts to raise the profile of and build solidarity among disparate groups on the issue of considering how immigration law should be amended or enforced in the wake of the move towards legalization, whether on a state-by-state or federal level. The final product will consist of a paper that goes into detail on perspectives and policy rationales for amending the INA to remove marijuana from disparate political perspectives -- those who are already committed to immigrants' rights, those who are already committed to marijuana legalization, and those who are hostile to both.
For the first group, it's fairly self-explanatory: marijuana use is a deportable offense for immigrants whether or not it is legal, which makes little sense in the era of marijuana reform. For legalization supporters, I focus on economic developments and social justice. Allowing immigrants into the group of people who could purchase and use marijuana would both bring more revenue into the market and create a new group of folks who could work in both agricultural and retail ends of the business. Further, given the divisive history of the connections between marijuana criminalization and immigration, noncitizens should be a key consideration in legalization legislation and regulation just as social equity programs are now for women and other minoritized people. Finally, for those who aren't familiar or amiable to either perspective, the paper dives into arguments about job creation, notions of justice and fairness, and the assertion that supporting minoritized individuals such as immigrants and people of color is beneficial for all members of the U.S.
After writing the paper, I will be developing a series of issue factsheets based on the arguments and categories above to garner support for solutions to the above issues, such as encouraging readers to support certain bills, state and district level reforms to the criminal justice process, organizations doing work on this issue.
Law Review Student Comment (2015): "Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences"
Press article providing historical context (2019): "The Surprising Link Between U.S. Marijuana Law and the History of Immigration"
Advocacy group report detailing the personal harm of the current deportation laws and scale of the issue (2015): "A Price Too High - US Families Torn Apart by Deportations for Drug Offenses"