Saturday, May 15, 2021
In a post last month, titled "Senate majority leader shrewdly emphasizing "freedom" in his push for federal marijuana reform," I explained why I viewed Senator Chuck Schumer's focus on "freedom" in his marijuana reform pitch to be appealing and shrewd given that it lines up with a lot of the smaller-government rhetoric often coming from GOP politicians and activists. Consequently, I was not surprised to see this past week that part of the pitch for a notable new GOP-sponsored bill to end federal marijuana prohibition includes an emphasis on greater liberty for individuals and states concerning marijuana practices.
This new 14-page marijuana reform bill is available at this link, and it is formally titled the "Common Sense Cannabis Reform for Veterans, Small Businesses, and Medical Professionals Act." This press release from Congressman Dave Joyce (OH-14), one of the sponsors, provides these details:
Through his work with the Cannabis Caucus and his position on the House Appropriations Committee, Joyce has helped lead the effort to reform the federal government’s outdated approach to cannabis and protect the rights of states across the country, like Ohio, that have voted to implement responsible cannabis policies. Specifically, the Common Sense Cannabis Reform for Veterans, Small Businesses and Medical Professionals Act, which has been applauded by several organizations, would:
- Remove cannabis from the Federal Controlled Substances Act.
- Direct the U.S. Food and Drug Administration and the Alcohol and Tobacco Tax and Trade Bureau to issue rules to regulate cannabis modeled after the alcohol industry within one year of enactment.
- Create a federal preemption to protect financial institutions and other businesses in non-cannabis legal states so that they can service cannabis companies.
- Allow the Department of Veterans’ Affairs to prescribe medical cannabis to veterans.
- Direct the National Institutes of Health to conduct two studies on cannabis as it pertains to pain management and cannabis impairment and report to Congress within two years of enactment.
And here is some of the media coverage that provides a review of this bill:
- From Marijuana Moment, "Congressional Bill To Federally Legalize Marijuana Filed By Republican Lawmakers"
- From MJBizDaily, "Two US House Republicans pitch federal marijuana legalization bill"
- From Newsweek, "Republicans Push for Federal Legalization of Marijuana to Ensure 'Individual Liberty'"
May 15, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, April 28, 2021
I believe I have previously noted some of the marijuana reform essays in the terrific collection published last year by Brookings under the title "Marijuana Federalism: Uncle Sam and Mary Jane." (Information about the book can be found here and here.) I am now pleased to see that Paul Larkin, Jr. has this notable new article titled "Reflexive Federalism" which engages with many of the ideas and essays in Marijuana Federalism. Here is its abstract:
Over the last twenty-plus years, a majority of states have concluded that marijuana has legitimate therapeutic and recreational value, and those states allow private parties to cultivate, sell, possess, and use it under a state regulatory régime. Consequently, we have witnessed the development of state cannabis regulatory programs that are inconsistent legally, practically, and theoretically with the approach that our national government has taken for fifty years. How do we resolve that conflict between state and federal law? The Supreme Court has refused to take this issue away from the political branches of the federal government by ruling that it is a matter within the states’ bailiwick. The Executive Branch has failed to take a coherent position regarding whether, when, and how it will enforce the existing federal law. And Congress has abdicated its responsibility to clarify what should be federal policy in a field where only Congress can decide. The result is that we have one law for Athens and one for Rome. Not surprisingly, that strategy is not working for anyone other than those members of Congress who wish to avoid casting a vote on the issue.
Some of Marijuana Federalism’s contributors encourage Congress to “cowboy up” politically and eliminate the disarray in the law by leaving it to each state to decide, while others try to persuade the Supreme Court to take another whack at the issue and rule that Congress cannot generally regulate the intrastate sale of cannabis. The threads that tie the essays together are the potential benefits we might see from permitting multiple states to devise different regulatory approaches and the affinity for decentralized decision-making built into our Constitution’s DNA. What Marijuana Federalism is missing, however, is a treatment of the argument that Congress should leave decisions regarding the recreational use of marijuana to the states, but not whether it has legitimate medical uses. For 80 years the nation has entrusted the Food and Drug Administration with the responsibility to decide what is a “drug” and what drugs are “safe” and “effective.” There is no good reason to treat cannabis differently.
April 28, 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)
Tuesday, April 20, 2021
As detailed in this new Drug Policy Alliance press release, today "the Federal Cannabis Regulations Working Group released its Principles for Federal Cannabis Regulations & Reform," outlining what a federal regulatory framework — grounded in justice and social equity—should look like." Here is more from the DPA release:
The working group was convened by the Drug Policy Alliance at the beginning of this year.
Throughout a series of meetings and in-depth conversations, the group — made up of cannabis state regulators, public health professionals, criminal justice reform advocates, civil rights attorneys, people working with directly impacted communities in the cannabis industry, re-entry advocates, academics and an expert involved in Canada’s cannabis regulation — has identified key principles that should guide the development of federal cannabis regulation policies. The principles document encourages and provides guidance on issues related to racial justice, equity, preventing underage use, elimination of lifelong consequences, medical use, taxation, research and more. This release precedes the group’s continued effort to develop and roll out a more comprehensive set of recommendations for Congress on crucial issues such as — but not limited to — which federal agency should regulate cannabis (and to what extent), what kind of product should cannabis be regulated as, expungement, workforce development, medical use, non-commercial activity, and enforcement.
It will be very interesting to see if how forthcoming federal marijuana reform bills meet up with this two-page statement of principles.
The title of this post is the title of this new article authored by Lauren Newell recently posted to SSRN. Here is its a abstract:
Like the alcohol industry during Prohibition, the marijuana industry is a profitable one. And, like bootlegging was then, selling marijuana in the United States now is illegal. Despite the number of states that have legalized or decriminalized the sale of marijuana for medical or recreational use under state law, marijuana sales remain illegal as a matter of federal law under the federal Controlled Substances Act of 1970 (CSA). Individuals and entities that violate the CSA face substantial potential criminal and civil liability, including prison time and fines, alongside a host of additional negative consequences arising in business law, tax, bankruptcy, banking, and other sources. The negative consequences marijuana businesses face have been discussed in detail elsewhere. This Article asks a different question: not, what are the negative consequences, but rather, when do those negative consequence attach? In other words, when does a company become a “Marijuana Business”?
For purposes of this discussion, a Marijuana Business is an entity that participates, contributes, or assists, directly or indirectly, in the retail and/or medical marijuana industry to an extent that exposes it, its owners, and its agents to potential criminal and civil liability and other negative business consequences. In short, these are the companies that should be worried about the fact that they are engaging in an industry that is illegal under federal law. To identify the circumstances that result in a company’s being a Marijuana Business, this Article analyzes seven hypothetical companies that directly participate in the marijuana industry or support others that do. For each, it asks whether the facts are sufficient to establish criminal liability either directly under the CSA or indirectly under criminal conspiracy or aiding and abetting liability theories. Part I briefly introduces criminal liability under the CSA, along with the two complicity theories. Part II analyzes the hypothetical companies’ actions and determines whether they are Marijuana Businesses. Part III concludes with factors that courts and companies can look toward to determine whether those companies are indeed Marijuana Businesses.
April 20, 2021 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Monday, April 19, 2021
After strong bipartisan approval in US House again, will US Senate finally take up SAFE Banking Act?
A big week for discussion of marijuana reform got off to a big start thanks to a vote in the US House of Representatives. This effective Marijuana Moment piece, headlined "U.S. House Approves Marijuana Banking Bill For Fourth Time, Setting Up Senate Consideration," provides these details:
The U.S. House of Representatives on Monday approved a bill to protect banks that service state-legal marijuana businesses from being penalized by federal regulators. After receiving an initial voice vote earlier in the afternoon, members passed the legislation by a final recorded vote of 321-101.
The legislation, which was reintroduced by Rep. Ed Perlmutter (D-CO) and a long bipartisan list of cosponsors last month, was taken up under a process known as suspension of the rules, which does not allow for amendments and requires a 2/3rd supermajority to pass....
Because marijuana businesses are largely precluded from accessing traditional financial institutions and have to operate on a mostly cash-only basis, that makes them targets of crime — a point that advocates, regulators and banking representatives have emphasized. “Even if you are opposed to the legalization of cannabis, you should support this bill,” Perlmutter added. “American voters have spoken and continue to speak — and the fact is, you can’t put the genie back in the bottle. Prohibition is over.”...
Rep. Patrick McHenry (R-NC) spoke in opposition to the legislation, stating that “regardless of your position on this bill, I do think the fact remains that cannabis is a prohibited substance under Schedule I of the Controlled Substances Act — and let me further state, by enacting this legislation, we’re effectively kneecapping law enforcement enforcement and legalizing money laundering.”
But in a sign of the bipartisan nature of this reform, Rep. David Joyce (R-OH) took to the floor to defend the legislation. He said “I’m proud to help lead this common sense and overdue effort.”
“At a time when small businesses are just beginning to recover from the economic destruction caused by COVID-19, the federal government should be supporting them, not standing in their way,” he said.
McHenry was the only lawmaker to rise against the bill on the floor, yielding all additional opposition time to other Republican members who actually spoke in support of it.
Just before the debate started on Monday, the governors of 20 states and one U.S. territory — as well as bankers associations representing every state in the country and a coalition of state treasurers — sent letters to House leadership, expressing support for the reform legislation.
The vote marks the fourth time the House has approved the Secure and Fair Enforcement (SAFE) Banking Act. Lawmakers passed it as a standalone bill in 2019 and then twice more as part of coronavirus relief legislation. At no point did the measure move forward in the Senate under Republican control last session, however.
But this time around, advocates and industry stakeholders are feeling confident that the bill’s path will not end in the House. With Democrats now in control of both chambers and the White House, there are high expectations that the proposal will make its way through the Senate and onto the president’s desk.
I am hopeful, but not at all optimistic, that this bill will move forward in the Senate with Democrats now in control of the chamber. Senate leader Chuch Schumer is expected to release a comprehensive marijuana reform bill "soon" and that bill will likely be a priority for Senators and advocates most eager to see federal marijuana reforms. Senators and others backing broader reforms could potentially view the SAFE Banking Act as an insufficient reform that could undercut momentum for bigger reforms.
April 19, 2021 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Tuesday, April 6, 2021
As discussed in this new Politico piece, headlined "Koch, Snoop Dogg join forces to push marijuana legalization," there is another notable new advocacy group focused on marijuana reform. Here is how the Politico article gets started:
What do you get when weed-loving rapper Snoop Dogg, right-wing billionaire Charles Koch and criminal justice reform advocate Weldon Angelos walk into a Zoom room? The Cannabis Freedom Alliance, a new coalition launching Tuesday that could change the dynamics of the marijuana legalization debate, as first reported by POLITICO.
The organization includes Americans for Prosperity, the political advocacy group founded by the Koch brothers; the Reason Foundation, a libertarian think tank; marijuana trade organization the Global Alliance for Cannabis Commerce; and The Weldon Project, a nonprofit that advocates for the release of individuals incarcerated for marijuana offenses.
The movement for marijuana legalization has long been dominated by left-leaning organizations like the Drug Policy Alliance and the National Organization for the Reform of Marijuana Laws. And despite a handful of congressional Republicans supporting the issue, most legalization proponents in Congress are Democrats. “We can’t cut with one scissor blade. We need Republicans in order to pass [a legalization bill],” said Angelos, founder of the Weldon Project. Angelos served 13 years of a 55-year sentence for marijuana trafficking charges, and got a full pardon from former President Donald Trump last December.
The background: The idea for the Cannabis Freedom Alliance sprouted from a Zoom call between Angelos, Snoop Dogg and Koch last summer. Koch expressed support for legalizing all drugs, to the surprise of Angelos. “I had known that his position on drugs was very libertarian,” Angelos said. “I just didn't know that he supported the legalization of all drugs.”
Angelos connected with the Koch network for its help in advocating for legalization at the federal level, which he believes is now more important than ever with Democrats in control of Congress. Prior to flipping the Senate, then-Majority Leader Mitch McConnell was a barrier to any marijuana legislation coming to the floor. But now with Majority Leader Chuck Schumer pushing the issue as a priority, a marijuana bill could very well come up for a vote. “We need 10 to 12 Republican senators,” Angelos said. “With Koch’s influence, I think that's likely a possibility.”
The website for the Cannabis Freedom Alliance is available here, and its one-page Statement of Principles can be found here. (Disclosure: The Ohio State University's Drug Enforcement and Policy Center (DEPC), which I help run, was founded with a grant from the Charles Koch Foundation, and a long time ago I served as co-counsel for Weldon Angelos as he pursued relief through a 2255 motion. But I have never met Snoop Dogg.)
April 6, 2021 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 (1)
Saturday, April 3, 2021
The federal marijauan reform bill that passed through the US House late last year was the "Marijuana Opportunity Reinvestment and Expungement Act" (the
Schumer: In 2018, I was the first member of the Democratic leadership to come out in support of ending the federal prohibition. I'm sure you ask, “Well what changed?” Well, my thinking evolved. When a few of the early states — Oregon and Colorado — wanted to legalize, all the opponents talked about the parade of horribles: Crime would go up. Drug use would go up. Everything bad would happen.
The legalization of states worked out remarkably well. They were a great success. The parade of horribles never came about, and people got more freedom. And people in those states seem very happy.
I think the American people started speaking with a clear message — more than two to one — that they want the law changed. When a state like South Dakota votes by referendum to legalize, you know something is out there.
Was there a specific moment or a specific experience that you can point to and say, “This is when I started to see this issue differently?”
A while back — I can't remember the exact year — I was in Denver. I just started talking to people, not just elected officials, but just average folks.
[They said] it benefited the state, and [didn’t] hurt the state. There were tax revenues, but people had freedom to do what they wanted to do, as long as they weren't hurting other people. That's part of what America is about. And they were exultant in it.
Perhaps because it plays well to my libertarian instincts, I find this focus on "freedom" to be appealing and shrewd as a central part of a pitch for federal marijuana reforms. I find the freedom focus appealing because I like the general notion that the federal government generally ought not be prohibiting personal freedoms, and especially ought not be using the weighty tools of the federal criminal justice system to advance prohibitions, unless and until we can be generally confident that federal prohibition is doing more good than harm.
Perhaps more importantly, I find the freedom focus shrewd because it lines up with a lot of the smaller-government rhetoric, past and present, often coming from GOP policians and activists. Whether it is the congressional Freedom Caucus or opposition to gun control or COVID rules or a host of other issues, there are lots of Republican who loudly claim to be ever eager to shrink the size and power of the federal government in order to increase the freedom of individuals (and/or states and localities). Against this political backdrop, I think Senator Schumer is already trying to position any vote against federal marijuana reform as a vote against freedom.
April 3, 2021 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)
Friday, March 19, 2021
Marijuana use still proving hurdle to working in White House despite Prez Biden's advocacy for reform
As reported in this Daily Beast piece,"dozens of young White House staffers have been suspended, asked to resign, or placed in a remote work program due to past marijuana use, frustrating staffers who were pleased by initial indications from the Biden administration that recreational use of cannabis would not be immediately disqualifying for would-be personnel, according to three people familiar with the situation." Here is more:
The policy has even affected staffers whose marijuana use was exclusive to one of the 14 states — and the District of Columbia — where cannabis is legal. Sources familiar with the matter also said a number of young staffers were either put on probation or canned because they revealed past marijuana use in an official document they filled out as part of the lengthy background check for a position in the Biden White House.
In some cases, staffers were informally told by transition higher-ups ahead of formally joining the administration that they would likely overlook some past marijuana use, only to be asked later to resign. “There were one-on-one calls with individual affected staffers — rather, ex-staffers,” one former White House staffer affected by the policy told The Daily Beast. “I was asked to resign.”...
In response to this news story, White House press secretary Jen Psaki tweeted out on Friday an NBC News report from February stating that the Biden administration wouldn’t automatically disqualify applicants if they admitted to past marijuana use. Psaki said of the hundreds of people hired in the administration, only five who had started working at the White House are “no longer employed as a result of this policy.”
Psaki didn’t note how many had been disqualified for a White House job before actually starting, nor did she note how many were suspended or relegated to remote work, but she did send an additional statement to The Daily Beast on Friday. “In an effort to ensure that more people have an opportunity to serve the public, we worked in coordination with the security service to ensure that more people have the opportunity to serve than would not have in the past with the same level of recent drug use. While we will not get into individual cases, there were additional factors at play in many instances for the small number of individuals who were terminated,” Psaki said.
The White House said in February it intended — for some candidates — to waive the requirement that all potential appointees in the Executive Office of the President be able to obtain a “top secret” clearance. The rules about past marijuana use and eligibility for the clearance vary, depending on the agency: For the FBI, an applicant can’t have used marijuana in the past three years; at the NSA, it’s only one. The White House, however, largely calls its own shots, and officials at the time told NBC News that as long as past use was “limited” and the candidate wasn’t pursuing a position that required a security clearance, past use may be excused.
Asked about the policy and its effect on the administration’s staffing Thursday night, a White House spokesperson disputed the number of affected staff, but said the Biden administration is “committed to bringing the best people into government — especially the young people whose commitment to public service can deepen in these positions,” and noted that the White House’s approach to past marijuana use is much more flexible than previous administrations....
Some of these dismissals, probations and remote work appointments could have potentially been a result of inconsistencies that came up during the background-check process, where a staffer could have, for example, misstated the last time they used marijuana. The effect of the policy, however, would be the same: The Biden White House would be punishing various staffers for violating thresholds of past cannabis use that would-be staffers didn’t know about....
The Biden administration has attempted to modernize the White House’s personnel policy as it relates to past marijuana use, which has disproportionately affected younger appointees and those from states where marijuana has been decriminalized or legalized. (Marijuana, of course, remains illegal in the eyes of the federal government.) The number of allowable instances of past marijuana use was increased from the Trump and Obama administrations — a reflection of the drug’s widespread use — and the White House approved limited exemptions for candidates whose positions don’t require security clearances. Those employees, like all those at the White House, must commit to not using marijuana while serving in the federal government and must submit to random drug testing.
The president, however, remains the final authority on who can receive a clearance, and the chief executive can overrule agency judgments on eligibility, as President Donald Trump did when he granted his son-in-law Jared Kushner a top-secret clearance over the objections of the intelligence community and his own counsel.
Thursday, March 4, 2021
The title of this post is the title of this notable new article authored by Robert Mikos now available via SSRN. Here is its abstract:
A growing number of states have authorized firms to produce and sell cannabis within their borders, but not across state lines. Moreover, many of these legalization states have barred nonresidents from owning local cannabis firms. Thus, while cannabis commerce is booming, it remains almost entirely intrastate. This Essay provides the first analysis of the constitutionality of state restrictions on interstate commerce in cannabis. It challenges the conventional wisdom that the federal ban on marijuana gives legalization states free rein to discriminate against outsiders in their local cannabis markets. It also debunks the justifications states have proffered to defend such discrimination, including the notion that barring interstate commerce is necessary to forestall a federal crackdown on state-licensed cannabis industries.
The Essay concludes that the restrictions legalization states now impose on interstate commerce in cannabis likely violate the Dormant Commerce Clause (DCC). The Essay also examines the ramifications of this legal conclusion for the future of the cannabis market in the United States. It suggests that without the barriers that states have erected to protect local firms, a new breed of large, national cannabis firms concentrated in a handful of cannabis-friendly states is likely to dominate the cannabis market. This development could dampen the incentive for new states to legalize cannabis and further diminish minority participation in the cannabis industry. To address these concerns, congressional legislation may be necessary, because individual states have only limited capacity to shape the national market and the firms that compete therein.
Wednesday, March 3, 2021
US Senate caucus releases notable new report, "Cannabis Policy: Public Health and Safety Issues and Recommendations"
As reported in detail via this Marijuana Moment piece, headlined "Senate Marijuana Report Highlights Legalization’s Popularity And Risks, While Criticizing DEA Research Barriers," this notable new report on marijuana policies was released today by the Senate Caucus on International Narcotics Control. Here is part of the story:
A U.S. Senate drug caucus released a report on Wednesday that recognizes broad voter support for marijuana legalization and expresses criticism of existing policies that inhibit research into cannabis, taking direct aim at the Drug Enforcement Administration’s (DEA) role in impeding studies. But because of what they see as the risks of cannabis use, lawmakers also want the federal government to consider recommending THC caps on state-legal products.
Sens. Dianne Feinstein (D-CA) and John Cornyn (R-TX) co-chair the Senate Caucus on International Narcotics Control, which released the document, and neither are generally viewed as allies of the legalization movement. The report, which was first reported by Politico, largely focuses on the need to boost research into the effects of cannabis, with members voicing concern about issues such as impaired driving, THC potency and marijuana use by vulnerable populations. At the same time, however, it acknowledges the “increasing popularity” of legalization and outlines some of the benefits of enacting the policy change.
“Despite its increasing popularity—91 percent of Americans believe cannabis should be legalized for either medical or recreational purposes—cannabis remains illegal at the federal level,” it says. “Nonetheless, the U.S. cannabis industry is thriving. Cultivation and sales have largely shifted from Mexican cartels to U.S.-based businesses operating in licit, state markets (though a sizeable [sic] black market remains).”
“Experts estimate the licit cannabis market employs more than 200,000 individuals and will produce as much as $24 billion in profits 2025, nearly $9 billion of which will be from medical cannabis sales,” the caucus wrote.
The report discusses at length the need for further research into marijuana and points to a number of barriers — including the Drug Enforcement Administration’s position on international treaties — that have stymied studies into the plant. Members wrote that because “cannabis may hold both promise and peril” it is “imperative to increase the research base associated with cannabis, and that this research should be used to guide future policy so that appropriate regulations can be put in place to mitigate any negative public health consequences.”...
Overall, the report identifies five issues around marijuana policy and offers corresponding recommendations. It is far from universally favorable to cannabis reform—with much discussion on risks associated with impaired driving and youth consumption, for example—but it reflects how the rhetoric around marijuana is continuing to evolve in Congress, even in traditionally conservative panels like the one that produced the new document.
“Despite growing acceptance and accessibility of this drug and its derivatives, there is still much we don’t know about the effects of marijuana usage,” Cornyn said in a press release. “It’s critical for policymakers to understand the public safety implications of increased marijuana use before diving in to the complex and difficult job of changing federal policy, and it is my hope that this report will help inform these important policy decisions in the future.”
Feinstein said that she hopes the report will “speed final passage” of a marijuana research bill she introduced alongside Sen. Chuck Grassley (R-IA) in February. She said the legislation, an earlier version of which cleared the Senate toward the end of last year but which was not merged with a separate House-passed bill in time to be enacted, would mark “an important step to ensure that Congress is well-informed about this policy area.”
Monday, March 1, 2021
The 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.”
Thursday, February 25, 2021
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.
Saturday, February 20, 2021
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.
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."
Via 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.
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"
There 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
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)
Tuesday, January 19, 2021
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.
Sunday, January 17, 2021
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
The folks at Marijuana Moment have lots of great timely coverage of how various aspects of our new political landscape are leading to new discussions of marijuana reform possibilities. In an effort to catch up on a lot of fronts quickly, I will here post headlines and links (and my thanks for MM's effective and timely journalism):
At the federal level:
At the state level:
January 8, 2021 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)
Sunday, December 27, 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)