Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, March 1, 2021

AG-nominee Merrick Garland elaborates his views on marijuana prohibition enforcement

Senate-Supreme-Court-4-1609954094The folks at Marijuana Moment have this new lengthy piece, headlined "Biden AG Pick Restates Pledge To Respect State Marijuana Laws, In Writing," reporting on AG Merrick Garland's written responses to questions from Senators about marijuana enforcement. Here are some highlights:

President Joe Biden’s nominee to serve as U.S. attorney general has reiterated in written testimony to multiple senators that he does not feel the Department of Justice should be using its resources to prosecute people who are acting in compliance with state marijuana laws....

“I do not think it the best use of the Department’s limited resources to pursue prosecutions of those who are complying with the laws in states that have legalized and are effectively regulating marijuana,” he said in response to a question from Ranking Member Chuck Grassley (R-IA) about how he would navigate the federal-state marijuana policy conflict. “I do think we need to be sure, for example, that there are no end runs around the state laws by criminal enterprises, and that access is prohibited to minors.”

That view is consistent with policies put into place under Obama — known as the Cole memorandum — and then rescinded by President Donald Trump’s first attorney general, Jeff Sessions.

Pressed on whether he generally supports efforts to decriminalize or legalize cannabis, the attorney general nominee didn’t give a specific answer but gave an answer focused solely on the harms of current punitive policies.

“Criminalizing the use of marijuana has contributed to mass incarceration and racial disparities in our criminal justice system,” he wrote, “and has made it difficult for millions of Americans to find employment due to criminal records for nonviolent offenses.”...

But while Garland’s responses reflect a friendly attitude toward cannabis policy as far as advocates are concerned, he did say in response to a question from Sen. Ted Cruz (R-TX) about prosecutorial discretion that “the Executive Branch cannot simply decide, based on a policy disagreement, that it will not enforce a law at all.”

Another Grassley question noted Biden’s ongoing opposition to federal legalization and support for decriminalizing cannabis possession and expunging prior marijuana records. He asked whether Garland sees “any contradictions” in that policy stance.

“As I testified at my hearing, it is important to focus our attention on violent crimes and other crimes that greatly endanger our society, and prosecutions for simple marijuana possession are not an effective use of limited resources,” the judge replied. “As I testified, we have seen disparate treatment in these prosecutions that has had a harmful impact on people and communities of color, including stymied employment opportunities and social and economic instability.”

March 1, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, February 25, 2021

"Blowing Smoke at the Second Amendment"

The title of this post is the title of this new paper recently posted to SSRN and authored by Helen K. Sudhoff, a 3L at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this paper's abstract:

The Second Amendment to the United States Constitution codified the preexisting right to keep and bear arms, meaning the right was enshrined within the scope it was understood to have at its inception.  When enacted, the Second Amendment broadly protected the right to keep and bear arms for self-defense, only restricting gun ownership for certain classes of people, such as the mentally ill or felons.  However, these historical restrictions never encompassed marijuana users or possessors.  Quite the opposite, many of the founding fathers grew or manufactured cannabis themselves.  Despite this discrepancy, the Federal Government enacted § 922(g) in the Gun Control Act prohibiting gun owners and applicants who are medical marijuana patients from owning or possessing a firearm.  Further, such individuals must voluntarily disclose their medical marijuana use to the government, restricting their right to keep and bear arms and implicating the Fifth Amendment’s Privilege Against Self-Incrimination.  This paper will explore the consequences of the enactment and continued enforcement of § 922 against an individual’s right to keep and bear arms while possessing or using medical marijuana in accordance with their state’s medical programs.

February 25, 2021 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Saturday, February 20, 2021

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

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

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

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

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

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

Monday, February 15, 2021

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

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

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

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

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

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

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

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

Monday, February 1, 2021

Key Democratic Senators pledging to soon "release a unified discussion draft" to advance "comprehensive cannabis reform legislation in the 117th Congress"

6a00d8341bfae553ef0223c85155dc200c-320wiThere is notable marijuana reform news from Capitol Hill today, well covered by this Marijuana Moment piece headlined "Democratic Senate Leaders Announce Steps To Federally Legalize Marijuana In 2021."  Here are the basics:

Three leading champions of marijuana reform in Congress said on Monday that the issue will be prioritized in the new Democratic Senate this year and that they plan to release draft legislation in the coming weeks to begin a conversation about what the federal policy change will look like.

Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) said in a joint statement that ending cannabis prohibition “is necessary to right the wrongs of this failed war and end decades of harm inflicted on communities of color across the country,” but that alone “is not enough.”...

This is a narrative that’s been building in recent months, with Schumer saying on several occasions both before and after the election that he would work to move reform legislation with his new power to control the Senate floor agenda. Since Democrats secured a majority in the chamber, the stage is set for action....

Rep. Earl Blumenauer (D-OR), who has spent decades working to end marijuana prohibition and is a co-chair of the Congressional Cannabis Caucus, said in a press release that he’s encouraged that Senate’s new majority is “prepared to move forward together on comprehensive cannabis legislation.” He added that the House-passed Marijuana Opportunity, Reinvestment and Expungement (MORE) Act to legalize marijuana “is a great foundation” for reform in the 117th Congress. The new legislation would likely be referred to Wyden’s panel, the Senate Finance Committee, for consideration once introduced....

Recent comments from the Schumer, the majority leader, indicate that whatever bill is filed will likely include components of multiple pieces of legislation from the last Congress, which he said are actively being merged....

Already in 2021, two congressional marijuana bills have been filed: one to move cannabis from Schedule I to Schedule III of the Controlled Substances Act and another to prevent the U.S. Department of Veterans Affairs from denying veterans benefits solely because they use medical marijuana in compliance with state law.

Read the full joint statement on Senate marijuana reform priorities below:

Washington, D.C. – U.S. Senators Cory Booker, D-N.J., Ron Wyden, D-Ore., and Chuck Schumer, D-N.Y., issued the following joint statement regarding comprehensive cannabis reform legislation in the 117th Congress:

“The War on Drugs has been a war on people—particularly people of color.  Ending the federal marijuana prohibition is necessary to right the wrongs of this failed war and end decades of harm inflicted on communities of color across the country. But that alone is not enough. As states continue to legalize marijuana, we must also enact measures that will lift up people who were unfairly targeted in the War on Drugs.

“We are committed to working together to put forward and advance comprehensive cannabis reform legislation that will not only turn the page on this sad chapter in American history, but also undo the devastating consequences of these discriminatory policies.  The Senate will make consideration of these reforms a priority.

“In the early part of this year, we will release a unified discussion draft on comprehensive reform to ensure restorative justice, protect public health and implement responsible taxes and regulations. Getting input from stakeholder group will be an important part of developing this critical legislation.”

I am pleased to see this reform effort moving forward, and it will be especially interest to see when this unified discussion draft will be released and what provisions it will include. I am inclined to guess that the draft will be public sometime in late March or early April (I hope not on 4/20), and that the draft will look somewhat like, but not exactly like, the MORE bill that made it through the House last year. Interesting times

February 1, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, January 20, 2021

SAM releases notable list of 10 marijuana reform recommendations for the Biden Administration

Download (9)Smart Approaches to Marijuana (SAM), which describes itself as "the nation’s leading organization opposed to the commercialization of marijuana," today released this short report titled "TEN POINTS ON MARIJUANA REFORM: Science And Policy Recommendations For The Biden Administration."  This press release claims that the report is "centered on the President-Elect’s marijuana policy position and the platform of the Biden-Sanders Unity Task Force," and here is the list of 10 recommendations from the report:

Adjust Federal Criminal Penalties for Use; Model Law of States (Congress, DOJ, ONDCP)

Commence a Science-Based Education and Awareness Campaign to Discourage Young People from Using Marijuana and Educate Parents on Today’s High Potency THC (HHS/CDC)

Expand Options for Marijuana Researchers (Congress, HHS/NIH/NIDA/DOJ/DEA)

Publish a Surgeon General Report on the State of Science (HHS/ASH/OSG)

Appoint Bi-Partisan Commission to Examine Scheduling Options (EOP/ONDCP)

Urge Reimbursers to Treat Marijuana Use Disorder (HHS/CMS)

Fund Efforts to Monitor Youth Marijuana Marketing (HHS/CDC)

Increase Funding for Counterdrug/Marijuana Production Operations (ONDCP/HIDTA, DOJ/DEA)

Fund Data Monitoring Systems Like DAWN and ADAM (HHS/SAMHSA, DOJ/BJA)

Appoint ONDCP Director Whose Position on Marijuana is Consistent with the President-Elect, and Elevate to the Cabinet (WHO/PPO)

January 20, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Tuesday, January 19, 2021

Interesting review of the incoming Cabinet with an eye on cannabis policy

This recent piece, headlined "We Know About Biden’s Cabinet on Cannabis," reports on the marijuana reform profiles of a number of members of the new Cabinet selection by Prez-Elect Joe Biden. The piece is an interesting read, and here is the start and conclusion to a focused discussion of some key nominees:

With Democratic President-Elect Joe Biden set for inauguration next week – and with his party in control of both chambers of Congress (albeit the narrowest of majorities in the Senate) – cannabis legalization could, finally, get at least a debate in both houses.  There are three measures that the 117th U.S. Congress could consider during Biden’s first term: the SAFE Banking and MORE Acts – which were approved by the Democrat-controlled House in 2019 and 2020, respectively, and the STATES Act, a measure which would give states control over cannabis laws without federal interference that never made it to the House floor.

Were any of the reforms approved by Congress, responsibility for enacting and enforcing provisions of the law would be the responsibility of several government agencies led by Biden’s Cabinet picks.  The SAFE Act, for example, would require regulation (and buy-in) from the Treasury Department; the MORE Act would likely involve a host of agencies, including but not limited to Health and Human Services, and the departments of Labor, Commerce, and Justice.  The STATES Act would also likely hinge on support from the Justice Department and perhaps Commerce.

Many of Biden’s picks are veterans of the Obama Administration – for which the former Senator from Delaware served as vice president – such as Agriculture Secretary nominee Tom Vilsack, former Federal Reserve Chair Janet Yellen, and Domestic Policy Council Chair Susan Rice. Others, including Vice President-Elect Kamala Harris, HHS Secretary nominee Xavier Becerra (California), and Labor Secretary nominee Marty Walsh (Massachusetts), come from states that have legalized cannabis for adult use.

A host of nominees that could play a role were Congress to end federal cannabis prohibition simply have made no public statements on the issue....

If approved by the Senate, Biden’s cabinet would be the most diverse in the history of the U.S. and that diversity could be advantageous – rather than obstructionist – if Congress passes all (or some) of the major cannabis proposals. 

January 19, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (1)

Sunday, January 17, 2021

"Guidance Documents: The Sirens of the Cannabis Odyssey"

The title of this post is the title of this notable new paper authored by Troy Sims recently posted to SSRN.  Here is its abstract:

The growing cannabis industry in the United States has presented both economic opportunity and legal complexity. States that allow medical or recreational cannabis conflict with federal regulations and lawyers who represent cannabis businesses are caught in an ethical maze.  This article discusses an often-overlooked cause of this complexity: guidance documents from the Department of Justice.  The rapid growth of the cannabis industry correlates with a series of memos issued by the Department of Justice, one of which is known as the “Cole Memorandum”, and all of which have been rescinded.  The ambiguities and shortcomings of current administrative law have played a large part in creating the confusing legal status of the cannabis industry.  Resolutions must reflect this reality to adequately address the ethical, financial, and legal problems in the cannabis industry. 

January 17, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, January 8, 2021

Catching up on a remarkable political moment for marijuana reform with the help of Marijuana Moment

Sunday, December 27, 2020

Notable NORML accounting of marijuana reform highlights in 2020

I just came across this recent posting titled "2020 NORML Victories," which serves as a kind of year-in-review  of marijuana reform highlights in 2020.  Folks should click through to see the particulars as discussed by NORML, but here are heading flagging big developments in this post:

Historic: House Of Representatives Passes Legislation Repealing Federal Marijuana Prohibition

Cannabis Retailers Are Acknowledged To Be “Essential Businesses”

2020 Election Was A Clean Sweep For Legalization Ballot Measures

Virginia Decriminalizes Marijuana Possession, Calls For Legalization

Tens Of Thousands Have Their Criminal Marijuana Records Expunged

Vermont Legalizes Retail Marijuana Access

I now see that NORML has this additional new accounting of the marijuana reform year that was under the headline "2020 Year in Review: NORML’s Top Ten Events in Marijuana Policy." Here are the listed events:

#1: Advocates Run the Table on Election Day

#2: House of Representatives Votes to Repeal Federal Marijuana Prohibition

#3: Tens of Thousands Have Their Marijuana Records Expunged

#4: Sales of Retail Cannabis Products Reach Historic Highs

#5: No Uptick in Youth Marijuana Use Following Legalization

#6: Vermont Lawmakers Legalize Retail Marijuana Access

#7: More Seniors Report Using Cannabis to Improve Their Quality of Life

8: Cannabis Retailers Designated as “Essential Businesses”

#9: Studies Show Off-The-Job Cannabis Use No Threat to Workplace Safety

#10: Virginia Ceases Arrests for Marijuana Possession

December 27, 2020 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, December 13, 2020

"Half Banked: The Economic Impact of Cash Management in the Marijuana Industry"

The title of this post is the title of this notable new paper now on SSRN authored by Elizabeth Berger and Nathan Seegert. Here is its abstract:

We investigate the economic effects of cash management services that banks and credit unions offer in the legal marijuana industry, where only half of businesses have access to cash management services.  Administrative data from Washington state on marijuana sales, data on financial institutions, and our hand-collected survey on marijuana dispensaries allow us to investigate product-level effects.  Dispensaries with cash management services have 40% higher profitability, and we find that this is due to reduced frictions with upstream suppliers. Specifically, dispensaries with cash management negotiate 10% lower wholesale prices.  Through this channel, we find banking services provide large economic value.

December 13, 2020 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Data and Research | Permalink | Comments (0)

Thursday, December 10, 2020

Via bipartisan voice vote, US House passes bill to expand research on marijuana

As reported in this Politico piece, the "House on Wednesday passed a bill that would make it easier for scientists to conduct marijuana research in states where the drug is legal.  The bill passed on a voice vote with strong bipartisan support."  Here is more:

What’s the context?  Lawmakers from both sides of the aisle agree that more research into the health effects of marijuana is needed.  The bill is co-sponsored by two lawmakers who stand at opposite ends of the spectrum on marijuana legalization: Rep. Earl Blumenauer (D-Ore.) is the unofficial cannabis czar on Capitol Hill, while Rep. Andy Harris (R-Md.) is known for his work on an appropriations rider that restricts Washington D.C. from taxing and regulating a marijuana market.

Marijuana research legislation also has strong support in the Senate, where lawmakers from both parties, including Sens. Chuck Grassley (R-Iowa), Dianne Feinstein (D-Calif.), Ron Wyden (D-Ore.) and Dan Sullivan (R-Alaska), have proposed marijuana research legislation.  This bill, however, does not have a Senate equivalent.

What does this bill do?  Marijuana research now is limited to being based on a few variations grown by the University of Mississippi, the only entity that can legally grow marijuana under federal law for research.  Scientists have complained for years that what is grown for research doesn’t resemble the marijuana used in the real world.

The DEA has never licensed other research cultivators. In 2016, the agency said it would authorize other growers to help facilitate research.  It has received 37 applications, and said in August 2019 that it would move forward with processing those applications.  But no other growers have been greenlighted, and the lack of action on those applications has prompted lawsuits from two applicants....

The bill would amend the Controlled Substances Act to remove limitations on researching marijuana and create a new research structure for the drug.  The bill directs HHS and DOJ to create a program that would license additional producers and manufacturers of research marijuana. Researchers with federal licenses could use that marijuana for FDA-approved research.  The legislation also would speed up the wait times for research marijuana cultivation applications and reduce some of the cumbersome regulations that researchers face when trying to get approval to study marijuana....

What’s next? The Senate is unlikely to bring the bill up for a vote in the final days of this Congress, but its passage sets a marker for the next session.

Because this was passed through a voice vote, we do not get any accounting of how many House members actually supported or opposed this legislation. And it will be quite interesting to see if this modest marijuana reform bill becomes a priority in the next COngress or if instead reform advocates push only for more ambitious reforms.

December 10, 2020 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Data and Research, Recreational Marijuana Data and Research, Who decides | Permalink | Comments (0)

Tuesday, December 8, 2020

"A History of United States Cannabis Law"

The title of this post is the title of this new article from the Journal of Law and Health authored by David V. Patton. Here is the first paragraph of its introduction:

Perhaps the best way to understand early-Twenty-First Century state and federal cannabis law in the United States is to examine the relevant history.  Justice Oliver Wendell Holmes, Jr.’s statement is apropos: “[A] page of history is worth a volume of logic.”  This article begins by discussing the early history of cannabis and its uses.  Next, this article examines the first state and federal marijuana laws.  After a brief comparison of alcohol prohibition to cannabis prohibition, this article addresses cannabis laws from the 1920s to the early 1950s.  Then, this article takes up the reorganization of the federal drug regulatory bureaucracy since its inception.  Addressing the current era of cannabis laws and regulations, this article recounts how marijuana became a Schedule I drug.  The discussion then turns to changing social attitudes towards cannabis as reflected in presidential politics and popular culture.  Starting with the late-1990s, this article describes the development of state and federal cannabis laws and policies up to the present day.

December 8, 2020 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (1)

Monday, December 7, 2020

Congressional Budget Office reports MORE Act would generate over $13 billion in net federal revenue over next 10 years

Medical-marijuana-tax-28251526_11622906As reported in this new Marijuana Moment article, the MORE Act "passed in a historic vote last week by the U.S. House of Representatives would generate about $13.7 billion in net revenue for the U.S. treasury over the next decade, according to a new report by the Congressional Budget Office (CBO)." Here is more:

Most of the new funds — roughly $8 billion — would come from business taxes on the legal marijuana industry, such as income and payroll taxes. A separate excise tax, initially based on the price of cannabis products, is estimated to yield another $5.7 billion.

“CBO and the staff of the Joint Committee on Taxation estimate that H.R. 3884 would increase revenues, on net, by about $13.7 billion over the 2021-2030 period,” says the nonpartisan report, published Friday....

Legalization would also bring additional government costs, the CBO report says, though all spending would be entirely offset by new revenue. The expected reduction in the federal prison population, for example, would lead to an estimated $636 million in new spending on federal benefits programs, such as Medicare and Medicaid.

“Federal prisoners generally are not eligible for these benefits,” says the report. “By reducing the prison population, CBO estimates, H.R. 3884 would increase the number of federal beneficiaries, compared with current law, and thus increase direct spending for federal benefit programs.”

The $5.7 billion in expected revenue from the marijuana excise tax, meanwhile, would go into the so-called Opportunity Trust Fund. From that, an estimated $3 billion would be spent by the Department of Justice over the 10-year period to provide job training, legal aid and other services to disproportionately impacted communities. The remaining $2.7 billion would go to the Small Business Administration to be used on state and local grants to cannabis-related small businesses that help develop licensing rules.

It wasn’t immediately clear whether the CBO report analyzed the bill as originally introduced last year or included the impacts of new changes made to the legislation last week that would adjust cannabis excise taxes as the market matures. Under the amendment, the excise tax would initially start at 5 percent of a product’s cost, then increase over time to 8 percent and later shift to a weight-based tax.

The new CBO report was a long time coming. The office is supposed to assess the financial impact of most bills that advance out of congressional committees, but it’s been more than a year since the MORE Act won approval from the House Judiciary Committee....

While the MORE Act faces an uphill battle in the Senate — some have called the issue a nonstarter unless Democrats gain control of the chamber — legalization proponents have nevertheless cheered the bill’s House passage as a major milestone.

December 7, 2020 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (1)

Saturday, December 5, 2020

"Cannabis Capitalism"

The title of this post is the title of this new paper authored by Paul Larkin now available via SSRN.  Here is its abstract:

Federal law treats cannabis as contraband, but more than 30 states allow it to be sold for medical or recreational use.  The industry has a unique, quasi-legal status that poses legal, political, and commercial challenges for member businesses.  States with legalized cannabis use allow parties to own the means of production and sale, but supervise the industry by using traditional regulatory tools such as licensing, product quality testing, and taxation.

Yet, those supply-side regulations are not likely to control the harms that cannabis overuse can generate.  Like alcohol and tobacco, marijuana is a consumer good that can harm individual users and third parties.  Supply-side restrictions are also necessary to limit the number of people who overly consume marijuana.  States should assume responsibility for the sale of that product, just as many already do in the case of alcohol.  States should also decline to advertise their own sales of cannabis.  Finally, Congress should require states to assume those responsibilities as a condition of revising the federal Controlled Substances Act to lift the federal ban on cannabis sales.

December 5, 2020 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, December 4, 2020

MORE Act passed by US House, but party-line vote suggests uncertain future for federal reform

As reported in this CNN article, headlined "House passes bill decriminalizing marijuana at federal level," a big vote on federal marijuana reform was conducted today. But the vote reveals the still politically divisive nature of this issue, which will surely impact future reform efforts. Here are details:

The House of Representatives has approved legislation that would decriminalize marijuana and seek to "address the devastating injustices caused by the War on Drugs." Friday's vote in the Democratic-led House is the first time a chamber of Congress has voted on federal marijuana decriminalization. It has little chance of passing the Republican-led Senate, however.

The bill passed largely along party lines: 222 Democrats, five Republicans and Rep. Justin Amash, a libertarian, voted in support while 158 Republicans and six Democrats voted against.

The Republicans who voted for the bill are Florida Rep. Matt Gaetz, the bill's co-sponsor, as well as Reps. Brian Mast of Florida, Tom McClintock of California, Denver Riggleman of Virginia and Don Young of Alaska. The Democrats against were Reps. Cheri Bustos and Dan Lipinski of Illinois, Henry Cuellar of Texas, Conor Lamb of Pennsylvania, Chris Pappas of New Hampshire and Collin Peterson of Minnesota....

The MORE Act would remove marijuana from the Controlled Substances Act and eliminate criminal penalties for individuals who manufacture, distribute or possess marijuana. It also includes creating a process to remove prior convictions, known as expungement, and conduct sentencing review hearings for federal cannabis offenses.

The measure would also authorize a 5% sales tax on marijuana products to invest in services such as job training, legal aid and substance abuse treatment for individuals adversely impacted by the war on drugs. The tax revenue would also provide funds for small businesses loans and allow access to marijuana licensing and employment for economically disadvantaged individuals.

Republican Senate Majority Leader Mitch McConnell this week criticized the House for moving on the bill instead of passing parts of the Covid-19 stimulus bill that both parties agree on. "The House of Representatives is spending this week on pressing issues like marijuana. You know, serious and important legislation befitting this national crisis," McConnell said sarcastically on the Senate floor.

Critics of the bill cite the lack of potential traction in the Senate. "It's an unserious bill that was voted on in an unserious manner and we rest easily knowing there is zero interest in moving this bill in the Senate and zero interest in supporting it in either the current administration or the incoming one," Kevin Sabet, president and co-founder of Smart Approaches to Marijuana, which opposes marijuana legalization, said in a statement....

President-elect Joe Biden supports decriminalizing marijuana and the automatic expungement of prior criminal records for marijuana possession, but not full legalization of the substance, a Biden campaign spokesman said last year. "He would allow states to continue to make their own choices regarding legalization and would seek to make it easier to conduct research on marijuana's positive and negative health impacts by rescheduling it as a schedule 2 drug," Andrew Bates, who is now a spokesperson for the Biden transition, told CNN.

December 4, 2020 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Rounding up a few headlines just before historic vote on MORE Act to end federal marijuana prohibition

I have already highlighted in a prior post, asking "How many House Republicans are going to vote in support of the MORE Act?," what grabs my attention as the US House of Representatives conducts an historic vote on federal marijuana reform today.  But as the vote approaches, I thought it might be worthwhile to flag some media coverage that has caught my eye in recent days:

From Courthhouse News Service, "House Prepares for Historic Vote on Marijuana Decriminalization"

From Fox News, "McCarthy skewers Pelosi over coronavirus relief deadlock as House Dems take up marijuana, 'Tiger King' bills"

From Investor's Business Daily, "Marijuana Stocks Rise Ahead Of Historic Vote To End Prohibition"

From Marijuana Moment, "Conservative Groups Call For Marijuana Legalization Ahead Of House Vote"

From Rolling Stone, "Inside the Weed Legalization Bill Congress Is Voting on This Week"

December 4, 2020 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, December 1, 2020

How many House Republicans are going to vote in support of the MORE Act?

Capitolpot-largeA few months ago there was lots of excitement about the announced plans for the US House of Representatives to vote on H.R. 3884, the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (MORE Act).  But House leadership put off the vote until after the 2020 election, and now excitement is growing again as a vote is being discussed again.  This new Marijuana Moment piece, headlined "House Leaders Propose Changes To Federal Marijuana Legalization Bill Up For Floor Vote This Week," provides an effective accounting of where matters stand.  Here is how it starts:

A key House committee has scheduled a Wednesday hearing to advance a bill to federally legalize marijuana toward a full floor vote, which could then happen as soon as Thursday. Meanwhile, leaders in the chamber are proposing an amendment that would make several changes to the cannabis legislation.  Among the most significant revisions would be to the tax-related provisions of the bill.

The Rules Committee’s move to take up the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act follows Majority Leader Steny Hoyer (D-MD) announcement that the chamber would be holding a floor vote on the bill before the end of the year. 

Judiciary Committee Chairman Jerrold Nadler (D-NY), the lead sponsor of the bill, transmitted it to Rules with the series of modifications—many of them technical in nature. But beyond the tax changes, the newly proposed language also reaffirms the regulatory authority of certain federal agencies such as the Food and Drug Administration (FDA) and clarifies that cannabis can still be included in drug testing programs for federal workers.  Other members of the House are likely to file proposed amendments as well, though the Democratic majority of the Rules panel will determine which ones can be made in order for floor votes later this week.

Because there is zero chance that the MORE Act will move forward in the Senate during this Congress, this House vote may seem mostly symbolic.  (Indeed, this new Politico piece, headlined "Why the next Congress is unlikely to legalize marijuana," highlights why marijuana reform is likely to remain an uphill battle in the Senate even in 2021 and beyond.)  But Jacob Sullum has this new Reason piece, headlined "Will a Historic House Vote on Marijuana Legalization Nudge Biden Toward More Ambitious Reforms?," which rightly suggests the vote could have an impact on Joe Biden and the work of the incoming Biden Administration.  As Sullum puts it, any "historic House vote to repeal [the federal marijuana] ban would allow him to go further than he has so far without sacrificing his cherished reputation as a moderate."

I share Sullum's view that the House lame-duck vote on the MORE Act could prove to be consequential, though my take is that the answer to the question in the title of this post could and likely will prove to be the most important part of the story (perhaps along with how many Democrats vote against the MORE Act).  If the MORE Act passes with only D support, the discourse over federal marijuana reforms is likely to remain quite partisan for the months and years to come.  But if more than a handful of GOP Representatives vote for the MORE Act, it will become that much easier for reform advocates to portray future federal efforts as bipartisan.

Notably, Florida GOP Rep, Matt Gaetz was one of the original 29 co-sponsors of the MORE Act.  The Act now has 120 co-sponsors, but Rep. Gaetz is still the only GOP Rep among that number.  My understanding is that there may be a few more GOP Reps who would ultimately vote for the MORE Act.  But without more than just token GOP support, I doubt even a passing vote on the MORE Act will be as consequential as many reformers might hope.

 

December 1, 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)

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)