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)
Tuesday, December 8, 2020
The title of this post is the title of this new article from the Journal of Law and Health authored by David V. Patton. Here is the first paragraph of its introduction:
Perhaps the best way to understand early-Twenty-First Century state and federal cannabis law in the United States is to examine the relevant history. Justice Oliver Wendell Holmes, Jr.’s statement is apropos: “[A] page of history is worth a volume of logic.” This article begins by discussing the early history of cannabis and its uses. Next, this article examines the first state and federal marijuana laws. After a brief comparison of alcohol prohibition to cannabis prohibition, this article addresses cannabis laws from the 1920s to the early 1950s. Then, this article takes up the reorganization of the federal drug regulatory bureaucracy since its inception. Addressing the current era of cannabis laws and regulations, this article recounts how marijuana became a Schedule I drug. The discussion then turns to changing social attitudes towards cannabis as reflected in presidential politics and popular culture. Starting with the late-1990s, this article describes the development of state and federal cannabis laws and policies up to the present day.
Tuesday, December 1, 2020
A few months ago there was lots of excitement about the announced plans for the US House of Representatives to vote on H.R. 3884, the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (MORE Act). But House leadership put off the vote until after the 2020 election, and now excitement is growing again as a vote is being discussed again. This new Marijuana Moment piece, headlined "House Leaders Propose Changes To Federal Marijuana Legalization Bill Up For Floor Vote This Week," provides an effective accounting of where matters stand. Here is how it starts:
A key House committee has scheduled a Wednesday hearing to advance a bill to federally legalize marijuana toward a full floor vote, which could then happen as soon as Thursday. Meanwhile, leaders in the chamber are proposing an amendment that would make several changes to the cannabis legislation. Among the most significant revisions would be to the tax-related provisions of the bill.
The Rules Committee’s move to take up the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act follows Majority Leader Steny Hoyer (D-MD) announcement that the chamber would be holding a floor vote on the bill before the end of the year.
Judiciary Committee Chairman Jerrold Nadler (D-NY), the lead sponsor of the bill, transmitted it to Rules with the series of modifications—many of them technical in nature. But beyond the tax changes, the newly proposed language also reaffirms the regulatory authority of certain federal agencies such as the Food and Drug Administration (FDA) and clarifies that cannabis can still be included in drug testing programs for federal workers. Other members of the House are likely to file proposed amendments as well, though the Democratic majority of the Rules panel will determine which ones can be made in order for floor votes later this week.
Because there is zero chance that the MORE Act will move forward in the Senate during this Congress, this House vote may seem mostly symbolic. (Indeed, this new Politico piece, headlined "Why the next Congress is unlikely to legalize marijuana," highlights why marijuana reform is likely to remain an uphill battle in the Senate even in 2021 and beyond.) But Jacob Sullum has this new Reason piece, headlined "Will a Historic House Vote on Marijuana Legalization Nudge Biden Toward More Ambitious Reforms?," which rightly suggests the vote could have an impact on Joe Biden and the work of the incoming Biden Administration. As Sullum puts it, any "historic House vote to repeal [the federal marijuana] ban would allow him to go further than he has so far without sacrificing his cherished reputation as a moderate."
I share Sullum's view that the House lame-duck vote on the MORE Act could prove to be consequential, though my take is that the answer to the question in the title of this post could and likely will prove to be the most important part of the story (perhaps along with how many Democrats vote against the MORE Act). If the MORE Act passes with only D support, the discourse over federal marijuana reforms is likely to remain quite partisan for the months and years to come. But if more than a handful of GOP Representatives vote for the MORE Act, it will become that much easier for reform advocates to portray future federal efforts as bipartisan.
Notably, Florida GOP Rep, Matt Gaetz was one of the original 29 co-sponsors of the MORE Act. The Act now has 120 co-sponsors, but Rep. Gaetz is still the only GOP Rep among that number. My understanding is that there may be a few more GOP Reps who would ultimately vote for the MORE Act. But without more than just token GOP support, I doubt even a passing vote on the MORE Act will be as consequential as many reformers might hope.
December 1, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Sunday, November 29, 2020
In a handful of prior posts (linked below), I have flagged Oklahoma as a red state to watch closely as a vanguard of modern medical marijuana reforms. And so now I am pleased, but not surprised, to see this lengthy Politico magazine profile of deveopments in the Sooner state. The piece's full headline highlights its themes: "How One of the Reddest States Became the Nation’s Hottest Weed Market; Oklahoma entered the world of legal cannabis late, but its hands-off approach launched a boom and a new nickname: ‘Toke-lahoma.’" I recommend a full read, and here are excerpts:
Oklahoma is now the biggest medical marijuana market in the country on a per capita basis. More than 360,000 Oklahomans — nearly 10 percent of the state’s population — have acquired medical marijuana cards over the last two years. By comparison, New Mexico has the country’s second most popular program, with about 5 percent of state residents obtaining medical cards. Last month, sales since 2018 surpassed $1 billion.
To meet that demand, Oklahoma has more than 9,000 licensed marijuana businesses, including nearly 2,000 dispensaries and almost 6,000 grow operations. In comparison, Colorado — the country’s oldest recreational marijuana market, with a population almost 50 percent larger than Oklahoma — has barely half as many licensed dispensaries and less than 20 percent as many grow operations. In Ardmore, a town of 25,000 in the oil patch near the Texas border, there are 36 licensed dispensaries — roughly one for every 700 residents. In neighboring Wilson (pop. 1,695), state officials have issued 32 cultivation licenses, meaning about one out of 50 residents can legally grow weed.
What is happening in Oklahoma is almost unprecedented among the 35 states that have legalized marijuana in some form since California voters backed medical marijuana in 1996. Not only has the growth of its market outstripped other more established state programs but it is happening in a state that has long stood out for its opposition to drug use. Oklahoma imprisons more people on a per-capita basis than just about any other state in the country, many of them non-violent drug offenders sentenced to lengthy terms behind bars. But that state-sanctioned punitive streak has been overwhelmed by two other strands of American culture — a live-and-let-live attitude about drug use and an equally powerful preference for laissez-faire capitalism....
Oklahoma has established arguably the only free-market marijuana industry in the country. Unlike almost every other state, there are no limits on how many business licenses can be issued and cities can’t ban marijuana businesses from operating within their borders. In addition, the cost of entry is far lower than in most states: a license costs just $2,500. In other words, anyone with a credit card and a dream can take a crack at becoming a marijuana millionaire....
The hands-off model extends to patients, as well. There’s no set of qualifying conditions in order to obtain a medical card. If a patient can persuade a doctor that he needs to smoke weed in order to soothe a stubbed toe, that’s just as legitimate as a dying cancer patient seeking to mitigate pain. The cards are so easy to obtain — $60 and a five-minute consultation — that many consider Oklahoma to have a de facto recreational use program.
But lax as it might seem, Oklahoma’s program has generated a hefty amount of tax revenue while avoiding some of the pitfalls of more intensely regulated programs. Through the first 10 months of this year, the industry generated more than $105 million in state and local taxes. That’s more than the $73 million expected to be produced by the state lottery this fiscal year, though still a pittance in comparison to the overall state budget of nearly $8 billion. In addition, Oklahoma has largely escaped the biggest problems that have plagued many other state markets: Illegal sales are relatively rare and the low cost to entry has made corruption all but unnecessary.
Prior related posts:
- Oklahoma voters resoundingly pass medical marijuana initiative
- Highlighting how extraordinary the approval of medical marijuana was in Oklahoma
- Medical marijuana proving very popular in Oklahoma
- Two very different tales of state medical marijuana reform in Oklahoma and West Virginia
Saturday, November 21, 2020
Four years ago, I suggested in a post, titled "Voter math suggests a possible Hillary landslide IF she had championed marijuana reform, that Hillary Clinton's close loss in the 2016 Presidential election migtht have had a different outcome if she had been a vocal and consistent advocate for major marijuana reforms. Among other points in that post, I noted that third-party candidates Gary Johnson and Jill Stein had both advocated for full marijuana legalization and that Clinton might have prevailed in key swing states like Florida, Michigan, Pennsylvania and Wisconsin simply by peeling off some of their support voa support for marijuana reforms.
I am reminded of this now long-ago post, and prompted to ask the question in the title of this post, by this new commentary by Don Murphy of Marijuana Policy Project over at Marijuana Moment. The piece, titled "Did Trump’s Failure To Embrace Marijuana Legalization Cost Him Votes?," is worth a full read and here are snippets:
As a candidate [in 2016], Trump said he was in favor of medical marijuana… “100 percent.” He also said he knew sick people who use marijuana for medical purposes and that, “it really does help them.” I knew then that he was sympathetic to patients and to our cause. And he thought legalizing marijuana should be left up to the states. I was dealt a pretty good hand....
Knowing he agreed with the policy and could witness firsthand the value of the politics, I was just waiting for executive action. In August, in anticipation of an ‘October Surprise,’ MPP hand-delivered to the administration a list of what Trump could do to bring this civil war to an end. Yet they never acted.
When it was apparent that the Democratic nominee would be the author of the ‘94 crime bill, Joe Biden, the RNC and the Trump campaign were quick to juxtapose Trump’s criminal justice reform efforts with Biden’s “lock ‘em up” history. But it was difficult to make the case that Biden was bad on cannabis when Trump wasn’t yet good on cannabis. Trump’s vocal support of STATES was negated by his nomination of Jeff “good people don’t smoke pot” Sessions as Attorney General and Sessions’ subsequent repeal of the Cole Memo.
Finally in August, the president blamed marijuana ballot initiatives for the defeat of Wisconsin Governor Scott Walker for bringing “out like a million people that nobody ever knew were coming out.” I knew then that Trump understood the benefit of being on the right side of reform. Yet he never acted.
Maybe Trump is right, maybe not. According to an analysis by Marijuana Moment, one thing is certain: sharing your ballot with cannabis will embarrass you. In the red states, in the blue states and in the battleground states, pot is more popular than the pols. This year, medical cannabis beat the president in South Dakota and Mississippi. Adult-use bested all the Senate, House and gubernatorial candidates in Montana and beat both Trump and Biden in New Jersey and Arizona.
If Trump is correct, there is a certain irony that, less than three months after his remarks to Walker, cannabis got 60 percent, Trump 49 percent in battleground Arizona. His margin was razor thin. In a race where everything mattered, marijuana votes mattered. Did being on the wrong side of cannabis not only embarrass Trump (and McSally) in Arizona, but also cost him the state’s 11 electoral votes and maybe the White House? Based on his comments in Wisconsin, Trump must think so.
Wednesday, November 18, 2020
The title of this post is the title of this segment to which I contributed at the Legal Talk Network. I was quite gratified when folks from the Network reached out to me after my post-election post here titled "After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?." It was an abosulte joy to speak at length with Laurence Colletti, producer at Legal Talk Network, about my (crazy?) ideas concerning possible constitutional challenges to federal marijuana prohibition. Here is how the segment is set up:
Is it unconstitutional for the federal government to ban marijuana? In 2005, it wasn’t according to the U.S. Supreme Court in Gonzales v. Raich. But with more states legalizing marijuana in the 2020 election, does that same analysis apply?
Professor Douglas Berman from The Ohio State University Moritz College of Law breaks it down.
Especially because I fear that legislative action to reform federal marijuana laws may still be a long time off, I continue to believe would-be reformers ought not forget litigation as a means to advance overdue reforms.
A few prior related posts:
- ‘After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?’
- Marijuana and other drug reforms have a big night across the nation
- Is opposing maijuana reform more important to conservatives than restricting federal power?
Wednesday, November 11, 2020
In this post four years ago, right after then Prez-elect Donald Trump had named then-Senator Jeff Sessions to be his first Attorney General, I highlighted various political and practical reasons why I did not expect AG Sessions or the broader Trump Administration to dramatically thwart the state-driven momentum toward marijuana reform. I think that post has aged pretty well, as marijuana reform proved in the 2020 election cycle to be quite popular in blue, purple and red states. Results in in Arizona, which voted on full legalization initiatives in both 2016 and 2020, is perhaps especially informative: marijuana legalization was voted down 51% to 49% in 2016, and then was approved 60% to 40% in 2020.
Notably, as Attorney General, Jeff Sessions perhaps hoped to slow the state marijuana reform momentum by rescinding in early 2018 the Justice Department's "hands off" enforcement memos of the Obama era (basics here and here). But that move, by triggering backlash of various sorts and not really amounting to much, may have actually helped the state-level reform cause. And, of course, AG Sessions was fired before the end of the year, and the 2018 election cycle brought important initiative reforms in the midwest and western states of Michigan, Missouri, Oklahoma and Utah. Whenever the definitive history of modern US marijuana reform gets written, it will be valuable to note that Prez Trump, by essentially ignoring the issue for his entire time in office, allowed bipartisan momentum for reform to continue growing at the state level.
I am ruminating about these realities in reaction to seeing this piece from Gallup earlier this week headlined "Support for Legal Marijuana Inches Up to New High of 68%." Here are excerpts:
Americans are more likely now than at any point in the past five decades to support the legalization of marijuana in the U.S. The 68% of U.S. adults who currently back the measure is not statistically different from last year's 66%; however, it is nominally Gallup's highest reading, exceeding the 64% to 66% range seen from 2017 to 2019....
The latest data are from a Sept. 30-Oct. 15 poll, conducted before the election that saw marijuana legalization proposals on the ballot in several states. Voters in all of these states -- Arizona, Montana, New Jersey, and South Dakota -- authorized the legal use of recreational marijuana in the Nov. 3 election. They join 11 other states and the District of Columbia in legalizing pot for recreational purposes. Additionally, voters in Mississippi and South Dakota join 33 states and the District of Columbia in passing laws legalizing or decriminalizing the use of marijuana for medicinal purposes....
Majorities of most demographic subgroups of Americans support legalizing marijuana, including by gender, age, education and household income. Yet there is considerable variation in the extent of support within each group, as men, younger adults, college graduates and those in households with incomes of at least $100,000 are more likely than their counterparts to favor legalization....
Most politically left-leaning and middle-of-the-road Americans remain supportive of legalizing marijuana, while less than half of those who lean right favor it. Over eight in 10 Democrats and liberals, and more than seven in 10 independents and moderates, back legalization, but just under half of Republicans and conservatives do.
Views of legalization also differ greatly depending on frequency of attendance at religious services. A slim majority of those who say they attend weekly oppose legalization. Yet, about three in five of those who attend nearly weekly or monthly, and about four in five who attend less frequently, favor legalizing marijuana.
The 83% of Democrats and 72% of independents who prefer legalization are the highest readings in the trend for both groups, but Republicans' current 48% is down slightly from slim majorities in 2017, 2018 and 2019.
One could seek to draw lots of political lessons, past and future, from these data. For now I am content to just capture this polling snapshot while also recalling that social and political views on marijuana have been quite variable over time throughout US history. Anyone who thinks certain trends are inevitable, either short- or long-term, has not learned some of the key lessons from our history.
November 11, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Political perspective on reforms, Polling data and results, Who decides | Permalink | Comments (1)
"Potus and Pot: Why the President May Not (and Should Not) Legalize Marijuana Through Executive Action"
The title of this post is the title of this essay authored by Robert Mikos. The essay was written and posted to SSRN months before the November election, but it is arguably even more timely today. Here is the piece's abstract:
Could the President legalize marijuana, without waiting for Congress to act? The 2020 Presidential Election has shown that this question is far from hypothetical. Seeking to capitalize on frustration with the slow pace of federal legislative reform, several erstwhile presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead. This Essay warns that such promises are both misguided and dangerous, because they ignore statutory and constitutional constraints on the President’s authority to effect legal change. It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that means having to wait for Congress to pass new legislation. To be clear, this Essay is not a defense of our current federal marijuana policy. That policy is a mess, regardless of one’s views towards legalization. But proponents of reform need to recognize that Congress made this mess, and only Congress is capable of cleaning it up.
November 11, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)
Sunday, November 8, 2020
In what states (and how quickly) might we now see marijuana reform through the traditional legislative process?
I mentioned briefly in this post a few days ago that the big wins at the polls for marijuana reform in red and blue states nationwide will surely have all sorts of future reform echoes. As the question in the title of this post flags, I am especially intrigued to watch, in the short term, developments in various states in which we might reasonably expect the traditional legislative process to now take up reform.
The most obvious answer to the question in the post title flows from the big win for full legalization reform in New Jersey. That result, for reasons discussed a bit in this prior post, certainly should increase the likelihood of traditional legislative reforms neighboring New York and Pennsylvania and maybe even a few other mid-Atlantic and Northeast states. I have also seen mentioned that New Mexico might be a lot more likely to move forward with reforms now that legalization prevailed in Arizona.
But, of course, New Jersey ended up having a ballot initiative this election cycle because its legislature could not agree on a framework for legalization through the traditional legislative process. New Jersey demonstrated in 2019 that even when a legislature has "the will" for marijuana reform, it might not always readily find "the way." So even if legislatures in New York and other states now seriously commit themselves to full legalization, turning that kind of commitment into completed legislation can still prove challenging.
One final element to consider here are states that seem likely to have state legalization ballot initiatives in the works for 2022. In states like Florida, Ohio, Oklahoma and a few others, I wonder if legislatures might have the wisdom and foresight to consider moving forward with reform through the (somewhat controllable) legislative process rather than just allowing reform to be defined by the (advocate controlled) ballot initiative process. Interesting times.
November 8, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Because there has historically been a general lack of diversity in all sorts of government positions, I would guess that state administrators and regulators have not typically been an especially diverse bunch. But, when Cat Packer in 2017 was appointed the first Executive Director of the Los Angeles Department of Cannabis Regulation, I started noticing the efforts in some quarters to try to ensure state and local marijuana regulators reflected more of the diversity of our great nation. (Just some of a number of other notable regulators in this space include Toi Hutchinson in Illinois, Shaleen Title in Massachusetts, Marisa Rodriguez in San Francisco.)
These stories came to mind as I saw this story out of New Jersey from The Root, headlined "America Has Yet to Achieve Racial Equity in Cannabis Reform. New Jersey Is Hoping Dianna Houenou Can Change That." I recommend the piece in full, and here are excerpts:
[A] third of Americans (more than 111 million total) now live in states where adults can legally purchase pot. But although reform is sweeping the nation, with dispensaries popping up everywhere from Oakland and Denver to Baltimore and Chicago, America’s “green rush” has yet to substantially uplift the communities most harmed by the country’s devastating “war on drugs.” Instead, white business-owners and large corporations have disproportionately benefited from cannabis reform, prompting fresh concerns about what the future of marijuana legalization holds for the Black and Latinx communities who suffered the most from America’s punitive drug policies.
New Jersey hopes to change that narrative. On Friday morning, Gov. Phil Murphy appointed Dianna Houenou, a senior advisor with an extensive background in criminal justice reform, to lead the state’s Cannabis Regulatory Commission, which will be charged with shaping the state’s cannabis laws and ensuring that the communities devastated by the New Jersey’s drug policies reap the benefits of the burgeoning industry.
“Dianna has been a critical voice for social justice and equity on my team for the past year and a half after spending several years working on the fight to legalize marijuana with the ACLU,” Gov. Murphy told The Root in a statement. “Her commitment to doing what is right and to leaving no one behind has powered our criminal justice reform agenda, and I am immensely proud that she will be continuing that commitment as Chair of the Cannabis Regulatory Commission.”
“Since day one, we have said that the legalization of recreational marijuana must prioritize the communities marginalized and decimated by the failed War on Drugs,” Murphy added. “I know that Dianna is the perfect person to lead our state’s effort to create a marketplace for recreational marijuana that is equitable, fair, and inclusive of all communities.”...
New Jersey is the most populous of all the states that legalized recreational marijuana this week, and the first state in the mid-Atlantic to do so — leading Pennsylvania and New York, where lawmakers have long discussed legalization but have disagreed on how to do so. In New York, a major part of that disagreement has stemmed from questions around equity and accessibility. Nationwide, Black and Latinx Americans aren’t leading cannabis operations in significant numbers, nor have they been leading regulation or law-making efforts....
Working to make cannabis reform equitable will be no small task for Houenou and the commission, particularly in a state like New Jersey, where, despite similar rates of marijuana usage, Black people are 3.45 times more likely to be arrested for cannabis possession than white people. As recently as 2016, the Garden State spent $669.3 million to enforce restrictive drug policies, “despite the grave racial inequities in fuels,” writes Insider New Jersey.
Because the country has yet to really get equity in the cannabis industry right, Houenou will be leading New Jersey into uncharted territory. But if successful, the state could very well be a model for the region and the country at large.
Houenou isn’t going it alone. She has the full support of Gov. Murphy, who made marijuana legalization a signature part of his 2017 election campaign. She also understands that making cannabis reform truly equitable will be a holistic process requiring education, advocacy and buy-in from a variety of stakeholders, from law enforcement to those who lost years of their lives to drug prohibition policies. For her and the commission, equity won’t be an afterthought, as it has been in other places. “We really are looking to make sure that equity is built into a regulated structure at the onset,” she said.
Houenou stresses that under her leadership, nothing would be off the table for the commission. This includes policies already existing in other places, including prioritizing permits for those who live in neighborhoods impacted by harsh drug policies, as well as individuals who have been entangled in the court system specifically for cannabis offenses. But she’s also interested in exploring — and breaking down — other barriers to entry and ensuring that revenue from these burgeoning businesses goes back into Black communities.
November 8, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Saturday, November 7, 2020
What a difference a decade makes: recalling marijuana reform efforts in 2010 California and now in 2020 South Dakota
Talking to one of my favorite people about the greatness and unpredictability of democracy in the USA, I realized that it is worthwhile to put the amazingly consistent pro-reform marijuana election results of 2020 in a bit of historical context. For now, I will leave it to true historians to write on a broader canvas, as I just want to highlight what a difference a decade makes.
The first very significant and well-funded campaign for statewide marijuana legalization took place in deep blue California in 2010. Then and there, California Proposition 19 lost pretty badly with 53.5% of California voters being against legalization, and only 46.5% being in favor. Notably, among the folks in avowed opposition to this reform were US Senators Barbara Boxer and Dianne Feinstein, then-Democratic gubernatorial candidate Jerry Brown, then CA Gov Arnold Schwarzenegger, then-Democratic Attorney General Candidate Kamala Harris, and then-Prez Obama's Attorney General Eric Holder and his drug czar Gil Kerlikowske
Fast forward only 10 years, and we have seen extraordinary political, legal and social developments on so many fronts related to marijuana prohibition, and perhaps this is no more clear than the results in deep red South Dakota in 2020. This year the voters in South Dakota considered both Initiated Measure 26 to legalize medical marijuana, which passed by a vote of 70% for and only 30% against, and a state constitutional amendment for full legalization, which passed by a vote of 54% for and only 46% against. To my knowledge, there were precious few political figures who spoke out in avowed opposition to either of these reforms, and I am certain that Prez Trump's Attorney General did not weigh in on these state marijuana reform ballot measures.
This is a truly remarkable political and legal story, though perhaps even more remarkable is that we have seen no formal federal legislative reforms in this arena even over a decade of extraordinary change. I will (not-so-boldly) predict that we will see some form of federal statutory reforms over the next decade, but I am not at all confident about just when or what these reforms might look like. I will predict that 2010 CA Democratic Attorney General Candidate Kamala Harris, who is now in 2020 Vice President Elect Kamala Harris, might end up having a lot of impact on this matter.
November 7, 2020 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, November 4, 2020
After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?
Eighteen years ago, Angel Raich and her co-plaintiffs filed this complaint that argued that federal marijuana prohibition was unconstitutional on multiple theories. She claimed not only that federal marijuana prohibition exceeded Congress's authority under the Commerce Clause, but also that it violated the Fifth, Ninth and Tenth Amendments. A few years later, the Supreme Court took up and rejected only the Commerce Clause claim 6-3 in Gonzales v. Raich, 545 U.S. 1 (2005). In light of the remarkable and continuing nationwide citizen support for ending marijuana prohibition, I think it is time to consider a renewed constitutional attack on federal prohibition, a Raich 2.0, that renews these claims and adds one under the Eighth Amendment.
Notably, the Court's composition has changed dramatically since its ruling in Raich, with only Justice Breyer remaining from the Court's majority and only Justice Thomas remaining from the Raich dissent. Among the new Justices, there is a reasonable basis to speculate that at least two Justices (Justices Gorsuch and Barrett) and perhaps as many as four Justices (add in Chief Justice Roberts and Justice Kavanuagh) might be inclined to join Justice Thomas to reconsider the Commerce Clause ruling in Raich.
These same groups of Justices might likewise be inclined, perhaps, to breathe some life into the Ninth and Tenth Amendments in this context. One might further speculate that Justices Breyer, Kagan and Sotomayor might be open to considering a Fifth Amendment claim in this content. And, given established precedent that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 110 (1958), and that "the modern practices of the States ... are indicative of our 'evolving standards of decency'," Ford v. Wainwright, 477 U.S. 399, 419 (1986), I believe the dramatic modern state medical and recreational marijuana reform could make at least some enforcement of federal marijuana prohibition problematic under the Eighth Amendment.
I am not here seeking to assert that a federal constitutional challenge to federal marijuana prohibition will be sure to prevail on any of these fronts. But a whole lot has changed quite dramatically since the ruling in Gonzales v. Raich, 545 U.S. 1 (2005), including a bunch of red state reforms via voters this election cycle. All these changes lead me to continue to wonder if and when we might soon see an effective effort to renew constitutional challenges to federal marijuana prohibitions.
Some (too early) speculations on the (uncertain) future of marijuana reform after big state wins Election Night 2020
As of Wednesday morning after a very long 2020 Election Night, there is a lot which remains uncertain politically, but one matter is quite clear: marijuana reform is very popular all across the United States. As noting in this post last night, marijuana reform ballot initiatives prevails by pretty large numbers in states as diverse as Arizona, Mississippi, Montana, New Jersey and South Dakota. This Politico article, headlined "1 in 3 Americans now lives in a state where recreational marijuana is legal," provides some political context:
New Jersey and Arizona, with 8.9 million and 7.3 million residents, respectively, are the biggest wins for advocates this year. Legalization in New Jersey is expected to create a domino effect for legalization in other large East Coast states, including Pennsylvania and New York.
South Dakota, Montana and Mississippi, while much smaller, are significant in another way: As red states, the passage of marijuana measures illustrates the shift in Republican sentiment toward marijuana.
The impact of these ballot measures will be felt in Congress, especially if Democrats regain control of the Senate. If all the measures ultimately pass, a third of House members will represent states where marijuana is legal, as will a fourth of the Senate. If Democrats end up in control of both chambers next year, expect those legal state lawmakers to be called upon to vote on significant changes to federal marijuana policy — including removing all federal penalties for using it.
As of this writing, it is still unclear who will be in the White House for the next four years, but it seems increasing clear that Democrats will not be in control of the Senate. This reality leads me to speculate that, despite the big 2020 state ballot wins, it will still be quite challenging for Congress to move forward with any significant federal statutory marijuana reforms. Whether to pursue a modest or major form of federal reform already divides Democratic lawmakers in various ways, and I doubt that Republican leadership in the Senate will be eager to prioritize or even advance various bills on this topic. If the person in the White House decides he wants to focus on this issue, these political realities could surely change. But, at this moment, it seems to me unlikely that a large number of lawmakers at the federal level will be keen to prioritize these matters in the short term.
But continued non-action at the federal level could actually make even more space for state-level reforms to continue apace. As the Politico excerpt highlights, the outcome in New Jersey should increase the likelihood of traditional legislative reforms in states like New York and Pennsylvania and maybe other northeast states. Also, the big ballot wins in red states in 2020 also makes even more likely that there will be ballot initiatives for full legalization or medical marijuana reform in a half-dozen or more states in the coming years. Just off the top of my head, I count Arkansas, Florida, Idaho, Missouri, Nebraska, North Dakota, Ohio and Oklahoma as all real possibilities for state initiatives perhaps as early as 2022.
November 4, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, November 3, 2020
The title of this post is the title of this exciting and timely new report authored by Dexter Ridgway and Jana Hrdinova of The Ohio State University's Drug Enforcement and Policy Center. (The full glossy version of the report is at this link, an SSRN version can be found at this link.) Here is the report's abstract:
As of October 2020, eleven states and the District of Columbia have undergone a transition from medical to adult-use marijuana regimes navigating the creation of a new industry within a complex and incongruous legal framework. The collective experience of these states has created a wealth of lessons for other states that might legalize adult-use marijuana in the future. Yet not much has been written about the process of transition and how states managed the creation and implementation of the regulatory framework for an emerging industry.
This report, which draws on interviews with current and former government officials, aims to fill this gap by documenting lessons learned and decision-making behind the policies that shaped the recreational landscape in four states: Colorado, Michigan, Nevada, and Oregon. The purpose of this research is to provide actionable and concrete advice to states that are transitioning, or are planning for a transition, from a medical marijuana regime to an adult-use or recreational framework. The report highlights major decision points states face in their transitions and the pros and cons of each choice, lessons learned gathered from the participants in our study, and a short discussion of major challenges each state had to face with their respective programs.y
November 3, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Friday, October 30, 2020
The title of this post is the title of this new article recently posted to SSRN and authored by Alex Carroll. Here is its abstract:
The Supreme Court has long characterized a dog sniff as a binary investigative technique. For nearly four decades, the Court has held that a dog sniff conducted during a routine traffic stop is not a Fourth Amendment “search” because it reveals only the location of an illegal substance. Marijuana, however, is now legal in thirty-four states. Accordingly, this Article closely reexamines the Fourth Amendment’s treatment of dog sniffs.
In doing so, it makes three overarching arguments. First, a dog sniff conducted during a routine traffic stop is a nonbinary type of investigative technique in states that have legalized recreational or medicinal marijuana. Second, a dog sniff conducted during a routine traffic stop is a Fourth Amendment “search” in those same states. Third, law enforcement agencies operating in those states must retrain or replace their drug-detection dogs.
Moving forward, the Article further demonstrates, law enforcement agencies will encounter significant challenges associated with retraining or replacing their drug-detection dogs. It therefore concludes by providing law enforcement agencies with ways to mitigate those challenges. At its core, this Article offers the judiciary and law enforcement profession with a constitutional path forward.
October 30, 2020 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Monday, October 5, 2020
As always, the folks at Marijuana Moment have lots of great timely coverage about lots of timely marijuana reform topics. But as one especially interested in the intersection of criminal justice and marijuana reform issues, I found this piece from a few days ago especially worth noting:
Marijuana arrests in the U.S. declined in 2019 for the first time in four years, a new federal report shows. While many expected the state-level legalization movement to reduce cannabis arrests as more markets went online, that wasn’t the case in 2016, 2017 or 2018, which each saw slight upticks in marijuana busts year-over-year. But last year there was a notable dip, the data published this week shows.
There were a total of 545,601 marijuana arrests in 2019 — representing 35 percent of all drug arrests — according to FBI’s Uniform Crime Reporting program. That’s down from 663,367 the prior year and 659,700 in 2017. Put another way, police across the country made a cannabis bust every 58 seconds on average last year. Of those arrests, 500,394 (92 percent) were for possession alone.
“A decline in cannabis related arrests is better than seeing an increase for a fourth year in a row, but the amount of these arrests is still abhorrent,” Marijuana Policy Project Executive Director Steve Hawkins told Marijuana Moment. “There is no reason to continue punishing adults for consuming a substance that is less harmful than alcohol. Arresting adult cannabis consumers has a dramatically disproportionate impact on communities of color, is a massive waste of law enforcement officials’ time and resources and does nothing to improve public health or safety.”...
“At a time when a super-majority of Americans support marijuana legalization, law enforcement continues to harass otherwise law abiding citizens at an alarming rate,” NORML Political Director Justin Strekal told Marijuana Moment. “Now is the time for the public to collectively demand that enough is enough: end prohibition and expunge the criminal records to no longer hold people back from achieving their potential.”
While there’s no solitary factor that can explain the recent downward trend in cannabis cases, there are one-off trends that could inform the data. For example, marijuana possession arrests fell almost 30 percent in Texas from 2018 to 2019, and that seems to be connected to the legalization of hemp and resulting difficulties police have had in differentiating the still-illegal version of the cannabis crop from its newly legal non-intoxicating cousin.
At the federal level, prosecutions for marijuana trafficking declined in 2019, and drug possession cases overall saw an even more dramatic decline, according to a report published by the U.S. Sentencing Commission in March. Federal prosecutions of drug-related crimes increased in 2019, but cases involving marijuana dropped by more than a quarter, according to an end-of-year report released by Supreme Court Chief Justice John Roberts in December.
October 5, 2020 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Tuesday, September 22, 2020
The question in the title of this post is prompted by this new Marijuana Moment piece headlined "South Dakota Voters Support Medical And Recreational Marijuana Initiatives, New Opposition Poll Finds." Here are excerpts:
A majority of South Dakota voters support separate initiatives to allow both medical and recreational marijuana that will appear on the state’s November ballot, according to a new poll funded by legalization opponents.
But when it comes to the proposed adult-use legalization amendment, opponents argue that there’s significant confusion over what it would accomplish, as most people who said they favor the measure cited therapeutic applications of cannabis as reasons they support the broad reform.
The statutory medical cannabis initiative would allow patients suffering from debilitating medical conditions to possess and purchase up to three ounces of marijuana from a licensed dispensary. They could also grow at least three plants, or more if authorized by a physician.
The proposed constitutional amendment, which couldn’t be changed by the legislature if approved by voters, would legalize marijuana for adult use. People 21 and older could possess and distribute up to one ounce, and they would also be allowed to cultivate up to three cannabis plants.
There’s strong support for each of the measures in the new prohibitionist-funded survey, which was conducted June 27-30 and announced in a press release on Thursday. Roughly sixty percent of South Dakota voters said they favor recreational legalization, while more than 70 percent said they back medical cannabis legalization, according to the No Way on A Committee, which didn’t publish detailed cross-tabs, or even specific basic top-line numbers, from the poll results.
The decision by the prohibitionist committee to release the results of a poll showing such broad support for legalization is an interesting one. Typically, ballot campaigns and candidates use polling results to demonstrate momentum, but perhaps the South Dakota group is seeking to sound the alarm and generate donations from national legalization opponents to help stop the measure. If South Dakota votes to legalize cannabis this November, that would signal that the policy can pass almost anywhere....
While the recreational measure might not have been crafted solely with patient access in mind, adults who want to use marijuana for therapeutic reasons would still stand to benefit from a regulated market — regardless of whether it’s a medical or adult-use model — so it’s possible that the survey results don’t demonstrate total confusion among those respondents. Plus, the constitutional amendment does contain language requiring the legislature to enact policies on medical cannabis as well—providing more robust constitutional protections for therapeutic use than the statutory measure alone would ensure.
Maine, Nevada and especially Alaska are arguably "reddish" or "red" states that have already fully legalized marijuana via ballot initiatives in years past. But South Dakota is really deep red, as in 2016 it voted for Donald Trump two-to-one over Hillary Clinton. If such a deep red state really does vote convincingly for full marijuana legalization, I think the prospects for federal reforms get a lot brighter no matter who is in charge at the federal level after this election.
September 22, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Monday, September 7, 2020
The Daily Beast has this new piece highlighting that the bulk of the marijuana reform initiatives on the ballot in 2020 are in so-called red states. The piece is fully headlined "Marijuana Is Making Its Mark on Ballots in Red States: Republican-led legislatures have opposed legalization measures, so proponents are going right to the voters." Here are excepts:
Montana and a handful of other states this fall [will] decide whether to legalize recreational or medical marijuana. Five of the six states with ballot questions lean conservative and are largely rural, and the results may signal how far America’s heartland has come toward accepting the use of a substance that federal law still considers an illegal and dangerous drug.
Since Colorado first allowed recreational use of marijuana in 2014, 10 other states have done the same. Most are coastal, left-leaning states, with exceptions like Nevada, Alaska and Maine. An additional 21 states allow medical marijuana, which must be prescribed by a physician.
This year, marijuana advocates are using the November elections to bypass Republican-led legislatures that have opposed legalization efforts, taking the question straight to voters. Advocates point to a high number of petition signatures and their own internal polling as indicators that the odds of at least some of the measures passing are good....
Mississippi and Nebraska voters will decide on medical marijuana measures. South Dakota will be the first state to vote on legalizing both recreational and medical marijuana in the same election.
Montana, Arizona and New Jersey, all medical marijuana states, will consider ballot measures in November to allow recreational sales, a move opponents consider evidence of a slippery slope....
The Marijuana Policy Project is helping to coordinate the Montana legalization effort. Its deputy director, Matthew Schweich, said the organization does so only when polling suggests at least half of voters would support the measure. “It’s becoming normalized for people,” Schweich said. “People know that other states are legalizing it and the sky has not fallen.”
An effort to legalize marijuana in rural, conservative states would have been an uphill battle even a few years ago. But several factors have worked toward changing attitudes there, Schweich said. They include a gradually increasing acceptance in red states of neighbors that have legalized recreational pot—and seeing the tax revenue that legal marijuana brings. But perhaps the biggest catalyst toward normalizing pot use is having an established medical marijuana program, Schweich said.
After 15 years, Montana’s medical cannabis program is firmly rooted and has survived several legislative attempts to restrict it or shut it down. According to the Montana Department of Public Health and Human Services, more than 500 marijuana providers were serving 38,385 people as of July, which represents nearly 4 percent of the state’s population....
In Mississippi, 20 medical marijuana bills have failed over the years in the Statehouse. This year, 228,000 state residents signed petitions in support of a medical marijuana initiative to allow possession of up to 2.5 ounces of marijuana to treat more than 20 qualifying medical conditions. In response, lawmakers put a competing measure on the ballot that would restrict marijuana use to terminally ill patients and require them to use only pharmaceutical-grade marijuana products.
Jamie Grantham, spokesperson for Mississippians for Compassionate Care, called the measure an effort by the state to split the vote and derail legalization efforts. “I’m passionate about this because it’s a plant that God made and it can provide relief for those who are suffering,” said Grantham, who described herself as a conservative Republican. “If this is something that can be used to help relieve someone’s pain, then they should be able to use it.”
But opposition is starting to build. Langton, the Mississippi Board of Health member, is working with Mississippi Horizon, a group fighting legalization. Langton said he opposes the original initiative because he believes it’s “overly broad” and would allow dispensaries within 500 feet of schools and churches. It could also put Mississippi on a path toward legalized recreational use, he said. He added: “They say that marijuana is a natural plant, but poison ivy is natural, too. Just because something is natural doesn’t mean it is good for you.”
September 7, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Friday, August 14, 2020
Newsweek has brought together two leading voices in the marijuana reform conversation here under the headline "Debate: Should We Legalize Marijuana? | Opinion." Here is how the opinion editor sets up the discussion and links to the commentary:
Drug overdoses in America have inexplicably skyrocketed over the past five years. We are, it seems, facing terrible societal crises of mass despondency and lonely atomization. What's more, the stuff peddled to kids today, more potent in terms of THC level than ever before, ain't exactly your grandpa's weed from Woodstock. But on the other hand, surely the War on Drugs has been an abject failure, needlessly ruining lives and locking up youngsters who wouldn't otherwise have a chance at success in live. And as American public opinion shifts, is it finally time to fully legalize recreational marijuana?
This week, of Law Enforcement Action Partnership debates Dr. Kevin Sabet of Smart Approaches to Marijuana on one of the perennial questions facing the American populace. We hope you enjoy the detailed, lively exchange.
- By Major Neill Franklin (Ret.), "Legalization Is the Only Way to Improve the Criminal Justice System"
By Dr. Kevin Sabet, "Legalizing Pot Is a Catastrophic Mistake"
As is often the case, these two advocates make their arguments eloquently and effectively. Franklin stresses the myriad criminal justice harms and inequities that have resulted from marijuana prohibitions; Sabet stresses the myriad public health risks and inequities that may result from marijuana legalization and commercialization. Most of their points are sound, and I often think the crux of the marijuana reform debate turns on one's perspective on whether one is more concerned with documented criminal justice harms and inequities from prohibition or with potential public health risks and inequities that may result from marijuana legalization and commercialization.
Sunday, August 9, 2020
The question in the title of this post is prompted by this lengthy new Politico piece. The headline, "Black Lives Matter movement sparks 'collective awakening' on marijuana policies," and the start of the piece suggests the answer to the question is yes:
States and cities across the country have overhauled their marijuana policies in recent months, propelled by the Black Lives Matter protests over racial inequality and police brutality.
Since protests began in early June, many states and municipalities have adopted new cannabis regulations. Nashville, Tenn., stopped prosecuting minor marijuana possession cases. Portland, Ore., redirected all cannabis tax revenue away from the Portland Police Bureau. Colorado’s Legislature passed a long-stalled proposal to address social equity and scrap old marijuana convictions, and Sonoma County, Calif., and New York state expanded their programs to erase cannabis criminal records....
Cannabis was legalized in Colorado almost eight years ago, but without a social equity program or the expungement of cannabis-related convictions. Democratic state Rep. Jonathan Singer first pushed for expungement of cannabis records in 2014 and has pressed for marijuana possession charges to be wiped ever since.
But Singer said it was the protests around racial justice that finally got the proposal to the governor’s desk with strong bipartisan support — the social equity and expungements bill only garnered one “no” vote in the state Senate. Democratic Gov. Jared Polis signed the bill into law at the end of June.
But as the article continues, it becomes less clear if anything really big is changing with marijuana reform as racial justice gets more attention:
[M]any of the states and cities that did change their marijuana policies were already moving in that direction. Nashville spent the last six years reducing the number of marijuana arrests, before the protests motivated District Attorney General Glenn Funk to stop prosecuting possession entirely. Portland was already reassessing where cannabis tax revenue was directed, and the “defund the police” movement provided the catalyst for the city council to change the budget. In many of these cases, conversations around racial justice simply pushed legislation over the finish line in a jurisdiction that was already working on it.
And it’s clear that the racial justice conversation has not convinced the most vocal skeptics. In Pennsylvania, for example, the state lodge of the Fraternal Order of Police is not changing its anti-legalization position. Even some Democratic lawmakers in the state remain unconvinced about the current legalization effort, despite the demonstrations....
On Capitol Hill, it isn’t clear that racial justice protests have affected the motivation to pass marijuana policy reform. While many of the issue’s most prominent advocates have been silent on federal legalization in the last two months, House leaders are now considering a vote on the MORE Act — which would remove cannabis from the Controlled Substances Act and expunge some records — sometime this fall....
In June, Congress tried to reach an agreement on police reform. The House passed a sweeping policing bill largely along partisan lines. Senate Republicans introduced a more modest package of reforms, which Senate Democrats ultimately killed because it did not go far enough. Missing from either chamber’s proposal was anything that would overhaul federal marijuana policies. Even many of the most ardent champions of marijuana legalization as criminal justice reform were silent.
A few of may prior related posts:
- Is it growing clearer that marijuana reform is criminal justice reform and racial justice imperative?
- Timely reminders that marijuana reform is criminal justice reform ... especially when Black Lives Matter
- Persistently discouraging news about persistent racial disparities in marijuana enforcement
August 9, 2020 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)