Monday, January 23, 2023
Highlighting the hazy "who" of marijuana reform with state reforms and persistent federal prohibition
In the classroom and also in some of my scholarship, I often lean into the questions relating to "who" takes the lead with various legal doctrines and reforms. In the marijuana space, of course, these "who" questions have the added complications from conflicting federal and state (and sometimes local) laws and regulations. Usefully, this lengthy new Grid piece provides something of an overview of the messy realities of discordant "whos" in the marijuana policy space. The full title for the piece highlights its themes: "Marijuana can be legal and illegal at the same time: How the hazy mix of state and federal laws is creating a mess: It’s hard to figure out when and where using or selling marijuana is a crime — and when it’s not." Here are excerpts:
America is a little dazed and even more confused when it comes to how legal (or not legal) marijuana is. State laws have been changing dramatically over the past decade — but they’re also inconsistent across state borders. Something legal in one state could get you arrested the next state over. It has created a dizzying patchwork of rules, regulations and exceptions made even worse by the federal government’s complete ban of the substance....
[J]ust because federal agents aren’t exactly arresting every single person with a cannabis plant on their windowsill (there aren’t enough agents for that) that doesn’t mean there won’t be consequences. In child custody cases, for instance, one party can cite marijuana use as a violation of federal law when arguing that someone shouldn’t get custody.
There are also no workplace protections at the federal level, even for workers who use cannabis legally or medicinally in a state. That means that workers can be fired if they fail a drug test, even if they’re in a state where it’s legal and they aren’t currently using or high. Some states have passed worker protections for off-duty use of marijuana to address the issue.
And then there is housing: Federally subsidized public housing bans cannabis use. An applicant or tenant who is found to be in violation of this law might be denied housing or evicted — even if it’s legal in the state they are living in....
Besides the matter of taxes and prices, the matrix of federal and state policies has allowed a thriving “gray market” to proliferate.... This market might take the form of storefronts offering marijuana as a “gift” accompanying a purchase in D.C., where buying and selling weed is illegal — but possessing it isn’t — because of congressional members opposed to legalization putting a rider in a budget bill nearly a decade ago....
The removal of a federal prohibition might result in consolidation. Any huge company, which would be able to ship the product across state lines, could buy out any smaller competitors and bring down prices for legal cannabis products. (For reference, Rand previously estimated that all the cannabis used in the U.S. could be grown on a few dozen industrial-size farms.)
January 23, 2023 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, January 13, 2023
"Building Solidarity in Support of Immigrants’ Rights in the Evolving Marijuana Legislative Landscape"
As I have mentioned before, after a very busy Fall semester, I am catching up on the posting of some recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center. And now I have just started teaching a new semester of my marijuana seminar, it is especially enjoyable to be able to highlight some of the great work that was done by students in my last class. The title of this post is the title of this paper authored by Charlotte Kalfas who was in my marijuaan seminar last year and who now completing her 3L year at The Ohio State University Moritz College of Law. Here is the abstract of her paper:
This paper attempts to raise the profile of and build solidarity among disparate groups on the issue of considering how immigration law should be amended or enforced in the wake of the move towards legalization, whether on a state-by-state or federal level. It goes into detail on perspectives and policy rationales for amending the INA to remove marijuana from disparate political perspectives -- those who are already committed to immigrants' rights, those who are already committed to marijuana legalization, and those who are less amenable to either.
For the first group, it's fairly self-explanatory: marijuana use is a deportable offense for immigrants whether or not it is legal, which makes little sense in the era of marijuana reform. For legalization supporters, I focus on economic developments and social justice. Allowing immigrants into the group of people who could purchase and use marijuana would both bring more revenue into the market and create a new group of folks who could work in both agricultural and retail ends of the business. Further, given the divisive history of the connections between marijuana criminalization and immigration, noncitizens should be a key consideration in legalization legislation and regulation just as social equity programs are now for women and other minoritized people. Finally, for those who aren't familiar or amiable to either perspective, the paper dives into arguments about justice and fairness from a legal perspective, and the assertion that supporting minoritized individuals such as immigrants and people of color is beneficial for all members of the U.S.
January 13, 2023 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Race, Gender and Class Issues | Permalink | Comments (0)
Tuesday, January 10, 2023
As I am gearing up for another exciting new semester of teaching my always exciting Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law, I was especially drawn to this lengthy new op-ed by Justin Strekal at Marijuana Moment which has the same title as this post. I recommend the full piece, and here are excerpts highlighting some of its main themes:
2022 was the best of times for marijuana policy reform in America—but if you read the headlines or (god forbid) log onto Twitter, you could be forgiven for thinking that it was the worst.
This Orwellian doublethink is understandable if you look at it through the lens of a minute-by-minute analysis, or by only looking at the stock prices of the young, dominant players in the emerging cannabis industry. But we must keep the long game in mind when we think about ending the 85-year policy of marijuana prohibition and criminalization....
I have been a supporter of the SAFE Banking Act since I started at NORML in 2016, and I even took pro-SAFE meetings with groups that have since evolved their positions on the bill and are now demanding reforms to its underlying structure.
Back then, the purpose of the effort was to advance an aspect of legalization and the regulated marketplaces in Congress at a time when neither chamber had a leader who explicitly said they supported reform, be it SAFE or comprehensive. In other words, being for SAFE Banking was a form of harm reduction, not a cure.
Since the 115th Congress, a lot has changed. This includes the funding power of the reform movement, which has shifted dramatically in recent years, with the number of earnest advocates from the Drug Policy Alliance, Marijuana Policy Project and Americans for Safe Access shrinking, for example. On the flip-side, K Street lobby shops are hiring new suits seemingly every month, many of whom never thought about marijuana prohibition before being paid by a private company or trade association to do so....
As for what the Republican flip in the House means for this reported agreement between Schumer and Daines? What about comprehensive reform? Well, I’m not going to give you a percentage likelihood because only snake oil salespeople treat Congress like a betting market.
Whatever comes next in the House majority, it’s important to remember that 51 percent of House Republicans already voted for SAFE in the last Congress, including leaders like Reps. Kevin McCarthy (R-CA), Elise Stefanik (R-NY), Dave Joyce (R-OH), Bryon Donalds (R-FL), Kevin Hern (R-OK) and many others....
Because democracy is a verb and, as recent and ongoing events clearly show, things are not working well in America. But for the first time ever, there is actually a pathway to accomplish something pertaining to marijuana law reform — but only if the monied interests are willing to live up to the rhetoric they espouse.
January 10, 2023 in Business laws and regulatory issues, 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, December 21, 2022
It has been an interesting couple of months for discussions of marijuana reforms at the federal level. Prez Biden got the federal reform conversation amped up in early Fall when he pardoned low-level marijuana possession offenders and ordered administrative review of marijuana Schedule I status under the CSA (basics here). Then, with the November midterm election giving control of the House to Republicans in the next Congress, formal and informal discussions of broad and narrow federal statutory marijuana reforms grew along with suggestions of including reforms in lame-duck bills (basics here and here).
This buzz did result in one tangible reform, as Congress in November passed and Prez Biden in December signed the Medical Marijuana and Cannabidiol Research Expansion Act. But, though historic and important, this research reform bill is unlikley to be all that impactful and consequential anytime soon. And hopes for the passage of the SAFE Banking Act and other possible reforms were finally fully dashed this week, raising the possibility that we may not see big federal marijuana reforms coming from Congress for many, many more years.
Of course, Marijuana Moment has great coverage of all the action, and here are some of the pieces that discuss a significant failure in the modern marijuana reform movement:
Thursday, December 8, 2022
As mentioned in this post from the past weekend, lots and lots of folks had seeemingly come to believe that significant federal marijuana reform was quite likely to get enacted in Congress this month. But this new Politco piece, headlined "How the plan to pass a weed package went awry, " not only explains why the prospects for reform are dim this month, but perhaps for many years to come. Here are excerpts:
Democrats almost had a weed deal — for real this time. For weeks, a bipartisan group of senators worked to negotiate a historic package in the office of Senate Majority Leader Chuck Schumer. The ideologically diverse crew included Sens. Steve Daines (R-Mont.), Jeff Merkley (D-Ore.), Dan Sullivan (R-Alaska) and Rand Paul (R-Ky.).
The bargain they ultimately reached represents the broad spectrum of cannabis issues: banking, guns and criminal record expungements. The package gave progressives, libertarians and conservatives all something to be happy about. But in the final days of negotiations over the National Defense Authorization Act, which they hoped would serve as a must-pass vehicle for the cannabis package, enthusiasm evaporated. The unraveling of the plan was sparked by top Republicans attacking cannabis banking legislation that was the centerpiece of the deal....
The SAFE Banking Act, which the cannabis package revolves around, would allow banks to offer financial services to the weed industry.... SAFE was then paired with the HOPE Act — a bill introduced by Reps. Dave Joyce (R-Ohio) and progressive stalwart Alexandria Ocasio-Cortez (D-N.Y.) that creates grants for expungements at the state level, lending it a “states rights” component. Finally, the GRAM Act — introduced by late Alaska GOP Rep. and former co-chair of the Congressional Cannabis Caucus Don Young — was thrown in. It would protect marijuana users’ right to own a firearm.
Support was there: At least 10 Republicans have co-sponsored or signaled they support the SAFE Act to date. Co-sponsor Sen. Kevin Cramer (R-N.D.) said in November he was open to SAFE and HOPE, especially if Daines was on board. On Thursday, Daines said conversations were productive and Paul claimed that there were more than 60 votes for the package.
But the potential deal began to fall apart when key Republican senators took aim at the cannabis banking provision. On Monday, staffers for Sen. Chuck Grassley (Iowa), the ranking member on the Senate Judiciary Committee, and other senators involved in the deliberations met with representatives from the Justice Department to discuss concerns about how agency officials would enforce the bill. Following that meeting, Grassley’s office released a statement attacking the bill.
Then on Tuesday, Senate Minority Leader Mitch McConnell took to the floor to rip Democrats for trying to add extraneous proposals to the defense spending bill. “We’re talking about a grab bag of miscellaneous pet priorities, like making our financial system more sympathetic to illegal drugs,” he said.
Even stalwart supporters got cold feet about attaching the cannabis package to the NDAA. Cramer and Tommy Tuberville (R-Ala.), who both support the banking bill, said a defense spending package wasn’t the place for it. “It dilutes the proper role of this place,” Cramer said, suggesting that the deal be given a full committee markup and floor time instead.
The NDAA isn’t the last piece of legislation that will likely be passed in the lame duck, but the same obstacles will apply to an omnibus funding package that’s being negotiated. Simply put, if McConnell remains opposed to SAFE, it won’t make it into a major package.
But the bill isn’t dead yet: Paul is still bullish on its prospects, saying he is confident there are more than 60 senators in favor of SAFE if it were to receive a standalone floor vote. Democrats left this until the last minute, though, and the chances that the Senate can find any floor time for a standalone SAFE “plus” package before the end of the year are slim....
Daines said he’s focused on getting something passed before the end of the year, but other GOP supporters, including Tuberville, said they may just need to deal with it in the next year. Republicans are set to take over the House in January, dimming the chances for SAFE. House Minority Leader Kevin McCarthy has voted in favor of the bill, but he hasn’t signaled that cannabis is something he wants to spend time on.
It may be that after more than three years of trying to see SAFE passed, Democrats took a gamble with the lame duck and ran out of time to get it passed.
Because I am not an expert in congressional procedure, I do not know if there would be a way in 2023 for a SAFE+ package of reforms to make its way through the new Congress as a stand alone bill. But I do know that if Senate Minority Leader McConnell and and the future House Speaker McCarthy are not excited about moving forward any federal marijuana reform legislation, then no such legislation will move forward in the next Congress. And, as political prognosticators know, there is a pretty good chance that Senate Minority Leader Mitch McConnell could become Senate Majority Leader Mitch McConnell come January 2025. Thus, an oppositional Senator McConnell could very well scuttle any federal cannabis reform efforts for the next four years and maybe longer.
That said, Prez Biden and his agencies can possibly move forward with reforms under the CSA without Congress involved. And, like the research bill that became law recently, there may be smaller reforms (included needed criminal justice measures) that Senator McConnell and other marijuana skeptics may not aggressively oppose. And, with the red states of Oklahoma and Ohio possibly embracing full legalization in 2023, the broad politics here are always in flux. So, I do not think that all is lost with federal reform even as the plans and paths get much less certain.
Of course, 23 months ago, when Prez Biden was picking his cabinet and the Democrats won the Georgia run-offs to take control of the Senate, many believed federal marijuana reforms coming from a Democratic-controlled Congress would be right around the corner. Fast forward to the end of 2022, and Congress in a few weeks will no longer be controlled entirely by Democrats, and they have remarkably little to show on cannabis reform for their time in full control.
Sunday, December 4, 2022
New reporting by Axios and Politico suggest that US Senators on both sides of the aisle are working to get notable marijjuana reform measures included in this year's (must-pass) National Defense Authorization Act. The Politico piece, headlined "Senators push for SAFE Banking in defense bill," starts this way:
A landmark bill that would make it easier for banks and other financial institutions to service the cannabis industry could finally be poised for passage. The SAFE Banking Act could be included in the National Defense Authorization Act that Congress is expected to take up next week.
Republican senators had a “productive” meeting about the legislation on Thursday with Majority Leader Chuck Schumer, Sen. Steve Daines (R-Mont.) told POLITICO. Sen. Sherrod Brown (D-Ohio), chair of the Senate Banking Committee, said he "hopes" it is in the NDAA.
The final decision is likely to be made on Monday, when the House Rules Committee meets to tee up the compromise version of the NDAA for a vote on the House floor as early as Tuesday. A final version of the defense bill was expected to be filed Friday, but has been delayed as House and Senate leaders iron out last-minute issues around what outside bills should be attached.
The Axios piece adds these details:
The targeted legislation is the result of the pairing of two bills —Secure and Fair Enforcement (SAFE) Banking Act and the Harnessing Opportunities by Pursuing Expungement (HOPE) Act—that would attract both conservatives and progressives across Congress.
The latest changes to the bill ensure that the legislation does not unintentionally make it harder for law enforcement to prosecute other crimes involving other drugs or money laundering.
Schumer and the bipartisan group plan to attach this legislation to a must-pass year-end bill like the annual National Defense Authorization Act.
Schumer and Sen. Jeff Merkley have been working with Republicans for months, including Sens. Steve Daines, Rand Paul, and Dan Sullivan.
Friday, December 2, 2022
As reported in this Marijuana Moment piece, "President Joe Biden has officially signed a marijuana research bill into law, making history by enacting the first piece of standalone federal cannabis reform legislation in U.S. history." Here is more:
The bill cleared the House in April and the Senate last month, and a White House spokesperson confirmed to Marijuana Moment that the president intended to sign it. On Friday, he did just that.
The law gives the U.S. attorney general 60 days to either approve a given application or request supplemental information from the marijuana research applicant. It also creates a more efficient pathway for researchers who request larger quantities of cannabis....
Reps. Earl Blumenauer (D-OR) and Andy Harris (R-MD) sponsored the House version of the research legislation, which is substantively identical to a Senate bill from Sens. Dianne Feinstein (D-CA), Brian Schatz (D-HI) and Chuck Grassley (R-IA) that previously cleared that chamber....
The four co-chairs of the Congressional Cannabis Caucus — Blumenauer and Reps. Barbara Lee (D-CA), Dave Joyce (R-OH) and Brian Mast (R-FL) — released a joint statement following the president’s signing.
“For decades, the federal government has stood in the way of science and progress—peddling a misguided and discriminatory approach to cannabis. Today marks a monumental step in remedying our federal cannabis laws,” they said. “The Medical Marijuana and Cannabidiol Research Expansion Act will make it easier to study the impacts and potential of cannabis.”...
In a press release, Schatz said that “the medical community agrees that we need more research to learn about marijuana’s potential health benefits.” “Our new law will remove excessive barriers that make it difficult for researchers to study the effectiveness and safety of marijuana, and hopefully, give patients more treatment options,” he said.
Blumenauer and Harris previously championed a separate cannabis research bill that advanced through their chamber in April. Unlike that legislation, however, the newly approved bill notably does not include a provision that scientists had welcomed that would have allowed researchers to access cannabis from state-legal dispensaries to study.
The research legislation further encourages the Food and Drug Administration (FDA) to develop cannabis-derived medicines. One way it proposes doing so is by allowing accredited medical and osteopathic schools, practitioners, research institutions, and manufacturers with a Schedule I registration to cultivate their own cannabis for research purposes.
The Drug Enforcement Administration (DEA) is now mandated to approve applications to be manufacturers of marijuana-derived, FDA-approved drugs under the bill. Manufacturers will also be allowed to import cannabis materials to facilitate research into the plant’s therapeutic potential.
Another section requires the Department of Health and Human Services (HHS) to look at the health benefits and risks of marijuana as well as policies that are inhibiting research into cannabis that’s grown in legal states and provide recommendations on overcoming those barriers.
The bill further states that it “shall not be a violation of the Controlled Substances Act (CSA) for a State-licensed physician to discuss” the risk and benefits of marijuana and cannabis-derived products with patients.
Sunday, November 20, 2022
This notable new five-page Congressional Research Service report titled "Does the President Have the Power to Legalize Marijuana?". Here is how it gets started:
Marijuana and other products derived from the cannabis plant are regulated under both federal and state law. In recent years, a significant divide has developed between federal and state regulation. Under the federal Controlled Substances Act (CSA), marijuana is strictly regulated and may not legally be used for medical or recreational purposes. In contrast, a substantial majority of states have relaxed state law prohibitions on medical or recreational marijuana.
The fall of 2022 saw two key developments in federal and state marijuana regulation. In October 2022, President Joe Biden granted clemency to certain low-level federal marijuana offenders and directed the Attorney General to review the status of marijuana under federal law. While some observers consider President Biden’s grant of clemency to represent a significant change in federal marijuana policy, as a legal matter it did little to alter the growing disparity between federal and state marijuana regulation. Then, in November 2022, voters in five states considered ballot initiatives to legalize recreational marijuana at the state level, two of which were adopted. Legislators and commentators have proposed a number of legal reforms that would alter federal marijuana regulation and potentially reduce the divergence between federal and state law.
This Legal Sidebar provides an overview of the legal status of marijuana under federal and state law, then discusses recent developments including the grant of clemency for federal marijuana possession offenses and November 2022 state ballot initiatives related to marijuana. The Sidebar concludes with an overview of selected legislative proposals related to marijuana.
This CRS document is dated November 16, 2022, so it only makes a brief reference/link to the federal research bill that was passed by Congress on that very day, the "Medical Marijuana and Cannabidiol Research Expansion Act." As of this writing (Nov 20, 2022), that bill is still awaiting the President's signature.
Thursday, November 17, 2022
Though I have already flagged this event at my other blog, I wanted to be sure to highlight here this exciting webinar scheduled for next month (December 13 starting at 12noon), which is organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project. Here is a bit of the backstory and the panel lineup:
On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses. In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants. While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.
Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.
Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice
JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project
Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project
Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center
Wednesday, November 16, 2022
Congress passes marijuana research bill, the "Medical Marijuana and Cannabidiol Research Expansion Act"
With a Senate motion, the US Congress made some history today by passing a standalone piece of marijuana reform legislation. Here are the basics from Politico:
The Senate passed a bill designed to expand medical marijuana research on Wednesday by unanimous consent. Passage of the legislation, which is sponsored by Sen. Dianne Feinstein (D-Calif.) and Rep. Earl Blumenauer (D-Ore.) in their respective chambers, signaled a new era in federal cannabis policy: It’s the first standalone marijuana-related bill approved by both chambers of Congress. The House passed the bill in July, also by unanimous consent.
The bill, which will make it easier for scientists to conduct medical marijuana research and protect doctors who discuss the benefits and drawbacks of using the drug with patients, now heads to President Joe Biden’s desk....
Passage of the medical research bill by unanimous consent signals that perceptions about marijuana are changing. While expanded research is arguably the most conservative action Congress could take on marijuana, it is something that would have been unthinkable a decade ago. The bill came close to passing in September, but was held up by Sen. John Cornyn (R-Texas). Cornyn lifted the hold earlier this week.
“After working on the issue of cannabis reform for decades, finally the dam is starting to break,” Blumenauer told POLITICO in a statement. “At a time when more than 155 million Americans reside where adult-use of cannabis is legal at the state or local level and there are four million registered medical marijuana users with many more likely to self-medicate, it is essential that we are able to fully study the impacts of cannabis use.”
This Marijuana Moment article, headlined "Senate Sends Marijuana Research Bill To Biden’s Desk, With Schumer Saying He’s Having ‘Productive Talks’ On Broader Reform," highlights why this little bit of history might be a sign of things to come:
Just before the vote, Senate Majority Leader Chuck Schumer (D-NY) said on the floor that he is continuing to have “productive talks” about a broader package of cannabis reforms he hopes to pass before the end of the lame duck session.
In the meantime, while numerous marijuana measures have been filed and advanced in each chamber in recent sessions, reform has consistently stalled before reaching the president. But now, the “Medical Marijuana and Cannabidiol Research Expansion Act” is just one signature away from historic enactment.
Monday, November 14, 2022
As reported in this Marijuana Moment piece, "House Democrats and Republicans have co-published a joint memo ahead of a congressional subcommittee meeting on marijuana on Tuesday, laying out key background details on the issue that will likely inform the conversation at the meeting." Here is more:
The House Oversight Subcommittee on Civil Rights and Civil Liberties announced the meeting—titled “Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level”—last week. And the witnesses set to testify are broadly pro-legalization.
Several documents have been posted in advance of the meeting, including what’s described a “joint memo” from majority and minority staff that was uploaded on Sunday. Rep. Jamie Raskin (D-MD) chairs the panel, with Rep. Nancy Mace (R-SC) serving as the ranking member.
Given that leadership on the subcommittee shares bipartisan interest in advancing cannabis reform, it makes sense that the witnesses are well-known advocates for ending prohibition and that the joint memo generally provides information that makes the case for a comprehensive policy change.
It mentions several pieces of marijuana legalization legislation, including the House-passed Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, Senate leadership’s Cannabis Administration and Opportunity Act (CAOA) and Mace’s States Reform Act (SRA).
“This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs (VA); and the ability for the legal cannabis industry to access financial services,” the memo says.
The full 11-page "Joint Memo" is available at this link. It makes for an interesting read.
Thursday, November 10, 2022
US House subcommittee hearing scheduled on "Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level"
Interestingly, on the morning of Election Day, the US House Committee on Oversight and Reform released this notice announcing that on "Tuesday, November 15, 2022, at 10:00 a.m. ET, the Subcommittee on Civil Rights and Civil Liberties will host a hybrid hearing titled 'Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level'.” The next evening, this follow-up memo was released providing a lot more notable details about this notable congressional hearing (including a list of scheduled witnesses). Here are excerpts:
On October 6, 2022, President Biden announced that he granted a pardon to everyone convicted of simple marijuana possession under federal law and called for a review of how marijuana is scheduled under the Controlled Substances Act (CSA). Advocates for cannabis reform welcomed the President’s actions but continue to call for action in the legislative branch to decriminalize cannabis....
This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs; and the ability for the legal cannabis industry to access financial services.
And this official website provides some more interesting background and also the expected witnesses. Here is a snippet:
On Tuesday, November 15, 2022, at 10:00 a.m. ET, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, and Rep. Nancy Mace, Ranking Member of the Subcommittee on Civil Rights and Civil Liberties, will hold a hybrid hearing to examine the many benefits of cannabis decriminalization at the federal level, including addressing racial disparities in the criminal justice system, improving treatment options for veterans, and allowing marijuana companies to access traditional banking services.
Marijuana arrests account for 43% of all drug arrests, and nine in ten of those marijuana arrests are for simple possession. Although Black and white people use cannabis at roughly the same rates, Black people are nearly four times more likely to be arrested for violating marijuana possession laws, which carries life-altering implications for employment, housing, and education. Decriminalizing cannabis at the federal level and expunging criminal convictions for possession would alleviate these burdens and allow for societal advancement.
November 10, 2022 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, Who decides | Permalink | Comments (0)
Thursday, October 6, 2022
Prez Biden asking to start "administrative process to review expeditiously how marijuana is scheduled under federal law"
In this post at my other blog, I focused on the interesting (but not really big) news, set forth in a this official statement from the White House, that Prez Biden today announce that his is "pardoning all prior federal offenses of simple marijuana possession" and that he is "calling on governors to pardon simple state marijuana possession offenses." I will likely blog more over there about the criminal justice echoes of this interesting mass pardon announcement and exhortation to governors to follow suit.
But here, where we focus on "Marijuana Law, Policy & Reform," I want to focus on the interesting (and perhaps really) news that Prez Biden has also leaned into rescheduling of marijuana via this part of his statement:
Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law. Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.
Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.
I have been asked a few questions already about how long it will take to conduct an "administrative process to review expeditiously how marijuana is scheduled under federal law." My sense is that it will take years, not months, and that there is sure to be lots of debate over the science and politics of rescheduling even if there is a broad consensus that marijuana should no longer be on schedule I. This Marijuana Moment piece, headlined "DOJ To ‘Expeditiously’ Act On Biden’s Marijuana Pardon Directive, While HHS ‘Looking Forward’ To Scheduling Review," covers a bit of the process and the politics:
The Justice Department and U.S. Department of Health and Human Services (HHS) say they will quickly act to follow President Joe Biden’s new directive to review marijuana’s federal scheduling status and process mass cannabis possession pardons.
Within an hour after the president made the surprise announcement, a DOJ spokesperson released a statement saying the department would abide by the cannabis directive in an expedited fashion.... “Also, in accordance with the President’s directive, Justice Department officials will work with our colleagues at the Department of Health and Human Services as they launch a scientific review of how marijuana is scheduled under federal law,” the agency said.
HHS Secretary Xavier Becerra separately said in a tweet — posted as precisely 4:20 PM ET — that he’s “looking forward to working with Attorney General Garland to answer [Biden’s] call to action to review how marijuana is scheduled under federal law.”...
Biden’s scheduling review—which would be conducted by DOJ and HHS—could reshape federal marijuana policy depending on the final recommendation. Biden has faced numerous calls from advocates to use his executive authority to unilaterally initiate that process.
The agencies could ultimately recommend moving marijuana from the strictest classification of Schedule I under the Controlled Substances Act (CSA) to a lower schedule or no schedule at all.
Biden has said he supports rescheduling to Schedule II, but advocates have pushed for complete descheduling, which would effectively end prohibition.
Wednesday, September 28, 2022
John Hudak has this interesting new piece over at Brookings discussing the continued failure of marijuana reform becoming a significant campaign issues in this year's congressional races. The piece is titled "Congressional candidates’ silence on cannabis reform," and is worth a full read. Here is how the piece starts and concludes:
Cannabis reform has grown in popularity with voters, activists, and state legislators; cannabis is now legal for medical use in 38 states and DC and for adult-use in 19 states and DC. Despite those advances in state level reforms and in the broader conversation nationwide, Congress has failed to pass a major piece of legislation addressing the issue, and many voters and activists wonder why.
One argument is that federal level officials — in the executive branch and in Congress — simply don’t care enough about the issue to address it. To consider this question, I included a coding about cannabis reform in Brookings Primaries Project in 2022. The Brookings Primaries Project examines the publicly stated views—via the websites and social media presence — of all candidates running in U.S. congressional primary races. We coded each candidate on a four-point scale: whether they supported legalization or decriminalization of cannabis, whether they supported medical legalization only, whether their position was complex or indecipherable, and whether they failed to mention the issue at all.
The results provide three general takeaways. First, primary candidates for Congress do not consider the issue important enough to elevate to be included on their website or on social media. Second, on average, candidates who do engage on the issue are at least not harmed by staking out a public position. Third, stark differences exist between Democratic primary candidates for Congress and Republican primary candidates for Congress....
It is clear that among all candidates, all Democrats, and all Republicans, taking no public position on cannabis was the most popular strategy during the 2022 congressional primaries. However, among candidates who chose to take a clear position on cannabis, Republicans were more likely to oppose legalization than support it, and the reverse is true for Democratic primary candidates who took a position on cannabis.
In sum, cannabis as a political issue has risen in importance over the past 25 years. As state legislatures and voters via referenda have enacted changes to cannabis laws, the issue has become more popular even in the halls of Congress. However, cannabis reform advocates’ frequent stupefaction at the lack of progress at the federal level bumps up against a stark reality. Most candidates for federal office do not see cannabis as an issue prominent enough to discuss, and deep partisan differences still remain among elected officials, even as support for cannabis in the general public has exploded in recent years. And the true motivator for a member of Congress to take or change a position — whether voters hold their feet to the fire over an issue — has not yet become a reality in the vast majority of Congressional races across the United States.
September 28, 2022 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)
Thursday, September 8, 2022
Some days it seems there is now way too much marijuana news and commentary. Despite the lack of any federal legislative reforms at all, and relatively little major change at the state level, each day seems to bring dozens of headlines and stories in the cannabis space vying for my attention. And yet, even during busy times and lots of noise, a few headlines and stories break out to garner my attention. Today seems to be such a day via these stories and commentaries breaking through (to me, at least):
From The Hill, "Liberals push Biden on marijuana reform ahead of midterm momentum"
From The Hill, "America needs to get real about high-potency marijuana"
From the Los Angeles Times, "The reality of legal weed in California: Huge illegal grows, violence, worker exploitation and deaths"
From Marijuana Moment, "Senate Marijuana Banking Sponsor Gives Details About Forthcoming ‘SAFE Plus’ Reform Package"
From the Minnesota Reformer, "Minnesota’s Black marijuana users far more likely to face arrest than white ones"
September 8, 2022 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Wednesday, August 17, 2022
Split First Circuit panel holds dormant Commerce Clause applies to federally illegal marijuana businesses
In a notable ruling today in Northeast Patients Group v. United Cannabis Patients and Caregivers of Maine, No. 21-1719 (1st Cir. Aug. 17, 2022) (available here), a split First Circuit panel applied the dormant Commerce Clause to a provision of Maine's Medical Marijuana Act. Here is how the majority opinion gets started:
This appeal concerns whether the Maine Medical Use of Marijuana Act, 22 M.R.S. §§ 2421-2430 (2009) ("Maine Medical Marijuana Act"), violates what is known as the dormant Commerce Clause of the United States Constitution by requiring "officers" and "directors" of medical marijuana "dispensar[ies]," id. § 2428(6)(H), operating in Maine to be Maine residents. The United States District Court for the District of Maine held that Maine Medical Marijuana Act's residency requirement does violate the dormant Commerce Clause, notwithstanding that Congress enacted the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., to "eradicate the market" in marijuana, see Gonzalez v. Raich, 545 U.S. 1, 19 n.29 (2005). The District Court concluded that is so, because the residency requirement is a facially protectionist state regulation of an interstate market in medical marijuana that continues to operate even in the face of the CSA. We affirm.
Here is how the dissent by Judge Gelpi starts:
I respectfully dissent from the affirmation of the district court's opinion. I agree that Maine's residency requirement, that "[a]ll officers or directors of a dispensary must be residents of this State" set forth at 22 M.R.S. § 2428(6)(H), incontestably constitutes protectionist legislation. Indeed, at oral argument, counsel for Defendant-Appellant Kristen Figueroa conceded as much. Moreover, Figueroa does not assert that the measure could meet the strict scrutiny standard to which protectionist legislation is ordinarily subject. Indeed, the Supreme Court and this court have routinely invalidated similar protectionist legislation in markets ranging from liquor store licensing to egg products. See, e.g., Tenn. Wine & Spirits Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2457 (2019); United Egg Producers v. Dep't of Agric., 77 F.3d 567, 57172 (1st Cir. 1996). Following this caselaw, the majority affirms the district court by concluding that Maine's measure fails under the dormant Commerce Clause, because defendants have not satisfactorily demonstrated Congress's "unmistakably clear intent to allow otherwise discriminatory regulations," United Egg Producers, 77 F.3d at 570 (citing Wyoming v. Oklahoma, 502 U.S. 437, 458 (1992)), or demonstrated that Congress has otherwise consented to such protectionist legislation. In the ordinary course, in an ordinary market, I would agree that such a measure is unconstitutional under well-trodden dormant Commerce Clause principles and caselaw.
But the national market for marijuana is unlike the markets for liquor licenses or egg products in one crucial regard: it is illegal. Congress in 1971 enacted the Controlled Substance Act (CSA) pursuant to its Commerce Clause powers, designating marijuana a Schedule I controlled substance. See 21 U.S.C. § 841; id. § 812(c)(Schedule I)(c)(10); Gonzales v. Raich, 545 U.S. 1, 22 (2005). Under the CSA, it is a crime "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1). It is here that I part ways with the majority, because I disagree that the test we have developed for the mine-run of dormant Commerce Clause cases apply automatically or with equal vigor when the market in question is illegal as a matter of federal law. As such, I do not believe that the United Egg Producers test -- which, prior to today, we have only ever applied in cases involving legal markets -- extends to national markets that Congress has expressly made illegal. Instead, I start from the premise that we should vindicate the principles that animate the dormant Commerce Clause -- and I conclude that the same constitutional precepts that led us to articulate the United Egg Producers test counsel against its application here.
Wednesday, August 10, 2022
Effective coverage of federal government's efforts to defend federal gun prohibition for medical marijuana users
The folks at Marijuana Moment now have two lengthy posts discussing the recent filings in a lawsuit challenging the federal gun prohibitions applicable to medical marijuana users. Here are links to the stories and excerpts:
The Department of Justice asked a federal court on Monday to dismiss a lawsuit that seeks to overturn a policy blocking medical marijuana patients from buying or owning guns. The filling is partly premised on the government’s position that it would be too “dangerous to trust regular marijuana users to exercise sound judgment” with firearms.
In making its case for dismissal, DOJ also drew eyebrow-raising historical parallels to past gun bans for groups like Native Americans, Catholics, panhandlers, those who refuse to take an oath of allegiance to the government and people who shoot firearms while drunk....
At a top level, the Justice Department said the gun rights are generally reserved for “law-abiding” people. Florida might have legalized medical cannabis, but the department said that doesn’t matter as long as it remains federally prohibited.
The Justice Department’s characterization of medical marijuana patients as uniquely dangerous and unfit to possess firearms in its new response to a lawsuit exposed an “insulting” and antiquated perspective, Florida Agriculture Commissioner Nikki Fried told Marijuana Moment on Tuesday....
The Biden administration’s Justice Department didn’t just hold the line by denying the therapeutic benefits of marijuana, it also made the case that people who use cannabis would be too “dangerous to trust” to possess firearms. The memo’s reefer madness-era rhetoric has dismayed advocates and amplified frustrations over the president’s unfulfilled promises to enact modest cannabis reforms.
“I find it very insulting,” Fried said of the DOJ’s response. “You’re calling patients that have cancer that are using medical marijuana dangerous. You’re telling veterans who are using medical marijuana [that they’re] dangerous. I think that they missed the ball here — and it’s very disconcerting that this is the direction that they took.”
“There’s so many of us for years — for decades — who have been fighting against this stereotype of marijuana users,” the commissioner, who is running in a Democratic gubernatorial primary for a chance to challenge incumbent Gov. Ron DeSantis (R) in November, said. “To see the Department of Justice put it down in a 40-page memo defending their motion to dismiss is very disappointing.”
Tuesday, July 26, 2022
Over at my sentencing blog, I have spotlighted here what seems to be a truly historic congressional hearing taking place this afternoon, July 26, 2022, before the Subcommittee on Criminal Justice and Counterterrorism of the US Senate Judiciary Committee. The hearing is titled "Decriminalizing Cannabis at the Federal Level: Necessary Steps to Address Past Harms," and the scheduled witnesses all seem likely to have something notable to say. One of the scheduled witnesses is Weldon Angelos, and he previewed his testimony via this new Marijuana Moment commentary that is worth reading in full. Here are excerpts:
Tuesday will be a historic day in the U.S. Senate. Members of a key subcommittee have invited me to testify at a hearing on cannabis reform and the harms of criminalization — a first-of-its-kind meeting in a chamber where marijuana policy and the lifelong consequences of prohibition have been swept under the rug for far too long.
My message to the panel will be simple: My name is Weldon Angelos, and I am living proof of the benefits of second chances. But I’m far from the only person deserving of relief. I plan to remind members that inaction will only continue to breed injustice, and there’s no more time to waste.
The topic of the hearing — the critically important issue of federal cannabis decriminalization — affects the lives of millions of Americans, from those who have interacted with the criminal justice system, to patients and veterans who get relief from cannabis....
National cannabis reform must include: (1) the release of federal cannabis offenders; (2) a true expungement and sealing of records; and (3) the creation of meaningful opportunities for the formerly incarcerated upon release.
With a comprehensive approach to cannabis reform, we could immediately assist many of the nearly 3,000 people serving federal prison time for cannabis offenses, as well as the tens of thousands of individuals whose lives and futures are haunted by records of cannabis arrests, convictions, and sentences. Further still, Congress must provide the resources to address state-level cannabis arrests, convictions, and sentences, since each year hundreds of thousands of individuals become entangled in state criminal justice systems despite cannabis being legal in some form in 37 states, three U.S. territories, and the District of Columbia.
This is why I was excited and grateful to see the Cannabis Administration and Opportunity Act introduced last week. This bill would deschedule cannabis, helping to end the harmful criminal justice impacts of prohibition and supporting the expungement and resentencing of cannabis convictions, all while allowing states the right to decide the direction their jurisdiction will take.
Congress must also address the residual effects of cannabis convictions. Those with felony convictions can be politically disenfranchised, losing the right to vote or to serve on juries, for instance. They lose other civil liberties like the right to possess a firearm legally, as well as lawful opportunities afforded to others in education and in public housing, among other things. Cannabis convictions adversely impact credit scores too, and they can impede or entirely prevent employment, creating permanent barriers to true participation in society.
Even with a full presidential pardon, I still feel the stranglehold of my cannabis conviction. In my home state of Utah, my prior conviction bars me from participating in the state’s legal medical cannabis industry. The state refuses to issue licenses to individuals with felony cannabis convictions, even with a full presidential pardon. In California — the other state I call home — my criminal history prevents me from accessing credit, capital, and financing despite having engaged in conduct that is now legal throughout the jurisdiction....
I realize that I am one of the lucky ones. I am no longer inmate 10053-081. I am Weldon Angelos, a reform advocate with the immense privilege of being invited to testify before a Senate panel. But my fortune is not universal. I am reminded of all those left behind in prison — those who are still serving unjust sentences — many of whom are Black and Hispanic men and women who continue to serve time while predominantly white CEOs and entrepreneurs make millions from the recreational and medical cannabis industries around the country. The cannabis industry should be able to grow and thrive, but not at the expense of those who are still incarcerated.
And as we think about federal cannabis reform and ensure the release of those who are still serving, we must also provide opportunities and resources to support reentry and create a pathway to expungement to stop the collateral consequences.
July 26, 2022 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)
Monday, July 25, 2022
I am pleased to spotlight another great Drug Enforcement and Policy Center (DEPC) event that is part of our summer 2022 Cannabis Regulatory Deep Dive. (The first event in this series on "Interstate Commerce" can be watched at this YouTube link.). This event is scheduled for August 17 at 12noon and is titled "Not a SAFE Bet: Equitable Access to Cannabis Banking." This is how this event is described on this webpage (where you can register):
According to members of the Cannabis Regulators of Color Coalition, the SAFE Banking Act, as written, is not a safe bet to achieve fair and equitable access to financial services for those in the cannabis industry.
Please join us for another Cannabis Regulatory Deep Dive as our panel of experts shares their analysis of the SAFE Banking Act, why it would fall short of its goals, and recommendations to improve fair access to cannabis banking as detailed in their soon-to-be released paper, Not a SAFE Bet: Equitable Access to Cannabis Banking.
Cat Packer, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University
Rafi Aliya Crockett, Commissioner, Washington, D.C. Alcoholic Beverage Control Board
Dasheeda Dawson, Cannabis Program Manager, City of Portland, Oregon
Shaleen Title, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University
Thursday, July 21, 2022
As reported in this new Politico article, "Senate leaders are introducing sweeping legislation Thursday meant to lift federal prohibitions on marijuana more than 50 years after Congress made the drug illegal." Here is more about a long-in-development, unlikely-to-become-law marijuana reform bill:
Senate Majority Leader Chuck Schumer’s Cannabis Administration and Opportunity Act would decriminalize weed on the federal level and allow states to set their own marijuana laws without fear of punishment from Washington.
The bill has been a long time coming — Schumer, along with Sens. Ron Wyden (D-Ore.) and Cory Booker (D-N.J.) proposed a discussion draft more than a year ago — and its odds of passing in this Senate are slim. But the legislation will shape the conversation around cannabis legalization going forward and portions of it are likely to find their way into other bills that could pass before the end of the year.
The legislation includes both Democratic and Republican priorities: It expunges federal cannabis-related records and creates funding for law enforcement departments to fight illegal cannabis cultivation. It also establishes grant programs for small business owners entering the industry who are from communities disproportionately hurt by past drug laws, requires the Department of Transportation to research and develop a nationwide standard for marijuana-impaired driving, and restricts the marketing of cannabis to minors....
While marijuana legalization has spread rapidly across the U.S. over the past decade, Capitol Hill has not transitioned as quickly. Nineteen states now allow anyone at least 21 years old to possess and use the drug, and 37 states have established medical marijuana programs. National polls have consistently shown that roughly two-thirds of Americans back marijuana legalization, and support is even higher among younger voters.
But the votes aren’t yet there to pass Schumer’s bill on Capitol Hill. That’s in part because many lawmakers from states with legal markets don’t yet support substantial changes to federal law. Democratic Sen. Jon Tester, for example, represents a state where weed is legal — Montana — and says he does not support federal decriminalization. A handful of other Democrats told POLITICO that they are against legalization or are undecided, including Sens. Jeanne Shaheen (D-N.H.), Joe Manchin (D-W.Va.) and Bob Casey (D-Pa.). Schumer would need all Democrats, plus ten Republicans, to get the bill over the finish line.
Cannabis legalization advocates have had success in the past framing it with Republicans as a states’ rights issue, but some pro-decriminalization Republicans will likely be unhappy with the bill’s expungement of cannabis-related criminal convictions and its equity grant provisions.
Further complicating matters is that the House has twice passed its own sweeping marijuana legalization package, known as the Mariuana Opportunity, Reinvestment and Expungement Act. That legislation does not include much of the regulatory structure that’s part of the Senate bill, and also has a different tax rate....
Instead, some Democrats and Republicans are considering a smaller cannabis bill later this year that could see one or more provisions from the CAOA added to the SAFE Banking Act, a more widely-supported bill that would make it easier for banks to offer financial services to cannabis companies. That plan is still in the discussion stage and nothing formal has been decided.
Many of the changes added to the final Senate bill echo requests regularly made by Republicans. Law enforcement grants, a nationwide youth prevention campaign and traffic safety research all correspond to concerns that legalization skeptics have frequently raised. Schumer has met with Republicans — including Rep. Dave Joyce (R-Ohio), a co-chair of the Congressional Cannabis Caucus — in recent months to discuss where the two parties could potentially come together on weed legislation. Whether the changes will be enough to get enough Republicans on board, however, seems doubtful at this point.
Marijauna Moment's extensive coverage of this long-awaited news can be found here, and includes these additional details (and much more):
[T]he main thrust of the now-filed 296-page legalization bill closely resembles that of the earlier version, which weighed in at a mere 163 pages—though the senators highlighted a number of changes, which generally expand on the draft.
For example, there are revisions concerning cannabis industry workers’ rights, a federal responsibility to set an impaired driving standard, banking access, expungements and penalties for possessing or distributing large quantities of marijuana without a federal permit.
The bill would also create a new federal definition for hemp that would increase the permissible THC by dry weight to 0.7 percent from the current 0.3 percent, but also make it so all THC isomers would be included in that total, not just delta-9 THC.
July 21, 2022 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)